' The legality of the order dated 4-6-1974 pronounced by Ch. Muhammad Naseem, the learned Additional District Judge, Rahim Yar Khan has been agitated in this revision petition who had dismissed the appeal of the petitioner and had maintained the order dated 4-5-1973 of the learned Civil Judge III-Class, Rahim Yar Khan.
2. The relevant facts leading to this revision petition in substance are that the Arbitration Board Rahim Yar Khan had passed a decree in favour of Ghausia Corporation Grain Market, Rahim Yar Khan respondent No, 1 for the recovery of Rs, 14,163.90 against the petitioner who had sought the assistance of the learned trial Court by filing a suit and had assailed the validity of the decree of the said Board. On 21-12-1972 neither the petitioner nor Malik Yar Muhammad Advocate, his learned counsel put in before the learned lower Court and the suit was dismissed in default.
3. An application for the restoration of the suit was filed by the petitioner on the ground that his learned counsel was busy before the learned Additional Sessions Judge Rahim Yar Khan and he himself was ailing so on account of this sufficient ground he prayed for the restoration of his suit.
The learned lower Court formulated the following issue :-
(1) Whether there is a sufficient cause for the restoration of the case? 0. P. A.
(2) Relief.
4. This issue was found against the petitioner and his application intended for the restoration of the suit was dismissed. The appeal also failed. It has been conceded by the petitioner that he did not appear before the learned trial Court on 21-12-1972 and his learned counsel also absented himself when the case was called as he was busy in another Court at Rahim Yar Khan. The petitioner did not appear on account of his ailment but no medical certificate has been produced to show that he was really sick and was prevented from appearing before the learned trial Court on account of his sickness.
5. Sh. Inayat Ali Advocate, the learned counsel for the petitioner has strenuously argued that the petitioner may not be penalized on account of the negligence of Malik Yar Muhammad Advocate who failed to appear before the learned trial Court. Malik Yar Muhammad had appeared as P. W. I.
He nowhere stated that he had ever requested the learned trial Court that he intended to appear in this case and was busy before the learned Additional Sessions Judge. He has stated that he had gone to attend the Court but his case was not yet called and therefore he went to prosecute his cases before the learned Additional Sessions Judge, Rahim Yar Khan. It has been suggested to him that he had appeared before the learned trial Court and had requested that in the absence of the petitioner his suit may be dismissed. He has denied this suggestion. Karim Bakhsh in rebuttal has testified that Malik Yar Muhammad Advocate had met him near the door of the Court room where he had told him that he did not intend to prosecute the case of the petitioner.
6. I agree with the contention of the learned counsel for the petitions that a suitor should not be penalized on account of the negligence of his A counsel but this rule is not of universal application.
It is to be seen whether there is sufficient cause for the restoration of the suit. In this case the petitioner was absent and it was imperative on Malik Yar Muhammad Advocate to have at least requested the trial Court that his client was sick and he would be busy before the learned Additional Sessions Judge. In that event, the learned trial Court would have waited for Malik Yar Muhammad Advocate or would have sent the Court usherer to bring Malik Yar Muhammad when the petitioner's case was called. Malik Yar Muhammad did not bother to inform the Court about his occupation before the learned Additional Sessions Judge. In this manner sufficient cause for the restoration of the suit has not been evinced.
7. The petitioner has relied upon Khan Muhammad Khan and others v. Mir Sardar Ali and others, which lays down that the omission of a counsel to appear in a case on account of his being busy in another Court, is not, in all cases, a valid ground for holding that there was sufficient cause to set aside the order of dismissal. It has been added in this precedent that in cases where the omission of counsel to attend to any other cases is due to his unavoidable absence, it constitutes sufficient cause for the restoration of a suit. Muhammad Haleem and others v. H. H. Muhammad Naim and others lays down that there is no hard and fast rule for the restoration of a suit on account of the non-appearance of a counsel but, if not intentional, should not be viewed very strictly. In the said case arguments were to be heard when the suit was dismissed and it was held that the provisions of Order IX, C. P. C., were not attracted and the proper course was to proceed under Order XVII, rule 3 of the C. P. C. In Seth Shivrattan G. Mohatta and another v. Messrs Muhammadi Steamship Co.
Ltd., the suit was restored despite the counsel's negligence in prosecuting the suit because other sufficient and good reasons for the restoration of the suit were present. In the said precedent, the suit was dismissed in default on the 1st of May, 1957 which was declared an Eid holiday but the Court remained open because the moon was not sighted on the previous evening. It was held that this, by itself, constituted a sufficient cause for condoning the default in appearance of the plaintiff.
8. In this case as observed supra, the learned counsel for the petitioner was bound to request the learned trial Court that he would be busy before the learned Additional Sessions Judge and he may be granted an adjournment as his client was sick. He could have otherwise requested the Court to wait for him in the absence of his client. This prayer was not at all made and this being so, no sufficient cause for the restoration of the suit can be contemplated. The learned courts below have not committed any illegality or material irregularity in the exercise of their jurisdiction as contemplated under section 115, C. P. C. I, therefore, dismiss this revision petition and make no order as to costs. 1 2 3