1. ' This is a constitutional petition whereby the petitioner Khalid Saeed has called in question the correctness of the order passed by the District Judge, Karachi on 21st November, 1983 dismissing his application for restoration of his appeal. The appeal sought to be restored by the petitioner had arisen in the Rent Case No,118/1979 filed by the respondent No,2 under section 17 of the Cantonments Rent Restriction Act, 1963, seeking ejectment of the petitioner from certain godowns which had been let out to him on monthly rent of Rs,600. On 26th September, 1983 the appeal was fixed for hearing when both the appellant and his counsel remained 'absent and the appeal was accordingly dismissed for non-prosecution. On the following day the application was moved on behalf of the petitioner praying therein that the ex parte dismissal of the appeal be set aside.
2. Although the reason of illness of the appellant's counsel disbelieved by the learned District Judge, yet he dismissed the application on the ground of absence of the appellant.
3. ' The learned counsel for the parties were heard at great length and they also took me through the relevant documents available on record.
4. ' The chief contention of the learned counsel for the petitioner was that by insisting on presence of the petitioner on the date of hearing of the appeal viz. 26th September, 1983 the learned District Judge acted in excess of jurisdiction vested in him and therefore the impugned order suffered from illegality and was not sustainable. In support of his arguments he made reference to Order III, rule 1, C.P.C. And placed reliance on a chain of authorities. For appreciating the learned counsel's view point, it would be advantageous to reproduce Order III, rule 1, C.P.C. Which reads as under: "any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, he made, done by the party in person, or by his recognized agent or by a pleader appearing, applying or acting, as the case may be, on his behalf: ' Provided that any such appearance shall, if the Court so directs, be made by the party in person."
5. ' There is nothing to indicate that as required by the above proviso, the learned District Judge had, by any express order, directed the appellant to appear in person on the date of hearing of the appeal. In absence of such direction appearance could be put in either by the appellant himself or his pleader as the case may be. The argument of the learned counsel for the appellant was that on the relevant date the absence of the appellant was immaterial, as the appeal was fixed for hearing and his counsel was required to be present for delivering the arguments. Accordingly the learned counsel was of the view that since the appellant's counsel could not appear on account of his illness which has not been controverted, the learned District Judge's insistence on presence of the appellant was wrong and he was not justified in passing the impugned order. Taking the above arguments into consideration I am inclined to the view that even if the appellant had attended the Court on the date of hearing of his appeal, the case would not have proceeded owing to absence of his counsel who was undoubtedly sick. Therefore the only purpose the appellant's presence could serve was to make prayer for the adjournment of the case by him personally. Thus it was the presence of the appellant's counsel rather than that of the appellant himself which was essential on the crucial date.
6. ' At this stage I would like to dispose the objection to the effect that presence or otherwise of the appellant on the date of hearing of the appeal could not be decided in terms of the provisions of the Civil Procedure Code, as the appeal had arisen from the rent case instituted under the Cantonments Rent Restriction Act, 1963. In this connection it may be pertinent to refer to subsection
(2) of section 24 of the said Act which provides that appeal under this section shall be heard and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure and the provisions of Part VII, and Order XLI of the First Schedule to the said Code shall apply to such appeals. This clearly shows that all such provisions of Civil Procedure Code as may be found necessary for disposal of the appeal could be invoked for its decision. Since the appeal was dismissed in default, the appellant was within his right to place reliance on Order III, rule 1, C.P.C. In order to satisfy the Court that his personal attendance was not necessary and that his counsel's absence was beyond his control on account of his having fallen ill. Thus the above objection is without any force.
7. ' I would now proceed to examine the case-law reliled upon in support of the petition. The first case cited in this behalf is of Sardar Muhammad and another v. Mst. Habib Khatoon and 6 others (1982 CLC 281) wherein it was held: "Learned counsel for the respondents has laid stress on the point that it was necessary for the petitioners in the absence of their counsel to have appeared. Technically speaking, there is some force in the argument, but the petitioners having engaged a counsel, who had taken responsibility of appearance before this Court, unless they were informed by him (their counsel) that they were to appear in person, they could not have thought that their presence was necessary. If the learned counsel would have appeared the writ petition would not have been dismissed for non- prosecution. In these circumstances therefore, when the absence of the learned counsel has reasonably been explained, the absence of the petitioner would not make any difference. Some case-law was cited from both sides but in view of the ruling of the Supreme Court in Muhammad Haleem and others v. H.H.Muhammad Naim and others PLD 1969 SC 270 which covers the present case it is not necessary to notice or discuss the other cases."
8. ' The next case is of Mansoor Ahmad v. Z.H.Khawaja PLD 1976 Kar. 526 wherein it was observed by Zaffar Hussain Mirza (as he then was): "It would only be necessary for a plaintiff to be personally present when the Court passes an order to that effect under Order IX, rule 12, C.P.C."
9. ' The third case is of Sind High Court namely Mst. Qamar Sultana alias Qamar-un-Nisa v. Abdul Hussain and another 1982 CLC 767 wherein Saleem Akhtar, J. Observed: "The rules of procedure laid down by C.P.C. Are intended to further the cause of justice rather than to stifle it on procedural and technical grounds. Such provisions which provide remedy against defaults should be construed in a liberal manner and it should be seen whether the party seeking restoration is guilty of negligence and laches beyond explanation. This however does not give a premium to the defaulting party to completely ignore the duties cast upon it. Every case has to be decided on its own merits. The Court has to consider the facts and circumstances of each case to determine whether sufficient cause has been made out for restoration of the suit."
10. ' In the fourth case reported as Municipal Committee, Rawalpindi v. Raja Muhammad Sarwar Khan 1968 SCMR 817. The Supreme Court restored the appeal dismissed for default with these remarks: "In the facts and circumstances of this case, the bona fide mistake of the counsel and his clerk would amount to 'sufficient cause' for restoration of the appeal."
11. ' In another case of Supreme Court Muhammad Haleem and others v. H.H.Muhammad Naim and others P L 0 1969 SC 270 it was held: "It has been laid down by this Court that although 'sufficient cause' is not susceptible of an exact definition and no hard and fast rule can be laid down to cover all possible cases, yet where the non-appearance is not intentional and the counsel or his client has made genuine efforts or taken reasonable precautions to be present at the hearing, a very strict view should not be taken."
12. ' Apart from above cases, reference has also been made to some Indian authorities to reinforce the argument that to insist on presence of the appellant on the date of hearing when his counsel was required to argue the appeal was not in accordance with the requirements of the law. The first Indian case referred in this connection is AIR 1958 Mad. 122 wherein it was observed: .......... The presence of the client in an appeal on the final date of hearing is not necessary at all and in fact would be unusual."
13. ' In the other Indian case reported as Schanial v. Deva Chand AIR 1957 Raj. II it was held as under:- "That being the position in law, we are of opinion that where counsel has failed to put in appearance on the date of hearing for some reason and the suit has been dismissed for his default, what is reasonably necessary to be done as a condition precedent to the restoration of the suit or appeal is that he should) satisfy the Court that there was sufficient cause for his non- appearance when the suit or appeal was called for hearing. We are further of opinion that the party concerned whether he be plaintiff or defendant or appellant or respondent who has already arranged for his due representation in Court througn a duly instructed pleader, need not be called upon also to assign sufficient reason for his own absence at the hearing, the reason being that the party has made all reasonable arrangements for his representation in Court and he should not stand to be penalished for his own absence in such circumstances."
14. ' On the other hand two cases have been cited to support the contrary view namely that in the case of restoration, the default in appearance of both the counsel and the party concerned has to be explained. In the case reported as Akhtar Hussain v. Settlement Commisioner) Lahore Division, Lahore and others PLD 1966 (W.P) Lah. 567, it was held: "In order to explain that there was sufficient cause for the absence the explanation should be that of the party concerned and also of the Advocate or Advocates, if there are more than one."
15. ' In the second case reported as Zulfiqar Ali v. Lal Din and another 1974 SCMR 162 it was observed: "The mere fact that a litigant has engaged a counsel to appeal on his behalf does not absolve him of all responsibility. It was as much his duty as that of the learned counsel engaged by him to see that the appeal was properly and diligently prosecuted. If he engaged a counsel who was lacking in his sense of responsibility to the Court, it is he who should suffer and not the other side."
16. ' The last mentioned case is obviously distinguishable from the instant case inasmuch as that in the reported case the counsel engaged by the party concerned had not only remained absent but also was held to have shown lack of sense of responsibility for which the opposite-party was not to suffer. However the position is entirely different in the instant case. In the present case the lower appellate Court is not shown to have rejected the explanation furnished by the appellant's counsel that he was prevented by illness from attending the Court. Consequently the blame of non- appearance on behalf of the appellant could not be laid at the door of his counsel. As for the appellant himsel, it may be noted that he had no instructions from his counsel that his presence was necessary. Even otherwise as has been stated above it was for the appellant's counsel to deliver arguments on the crucial date of hearing and as such it was not essential for the appellant to be present on the said date. For the same reasons even the authority laid down in the case of Akhtar Hussain is not applicable in the instant case.
17. The view that crystallizes from the above discussion is that as required by Order III, rule 1 of the Civil Procedure Code which can be pressed into service in a rent case filed under the Cantonments Rent Restriction Act, 1963, unless the Court directs the party concerned to appear in person, appearance on behalf of the said party may be put in either by the party himself or by his counsel as the case may be. In the instant case there being no direction from the Court for personal attendance of the appellant, in ordinary course it was the counsel engaged by the latter who was to appear on the date of hearing of the appeal. This was all the more necessary as the counsel was to argue the appeal and he had given no instructions to the appellant to be present on the date of hearing had been satisfactorily explained as there is no indication in the impugned order doubting the explanation with regard to his absence on the ground of illness, the learned District Judge had no legal justification to insist upon the presence of the appellant and dismiss his appeal on the ground of his absence. Accordingly the impugned order is not sustainable and is hereby set aside as being without lawful authority and of no legal consequence. The learned District Judge will hear the appeal on merits after giving reasonable opportunity to both sides. In the circumstances of the case there will be no order as to costs.