' TANZIL-UR-REHMAN. J.--This High Court Appeal is directed against the order, dated 12-5-1982, passed by a learned Single Judge of this Court in Suit No.23 of 1980, dismissing the application under Order IX, rule 13 read with section 151, C.P.C. (C.M.A No.3625 of 1980). The facts giving rise to this appeal are as under:
2. The respondent obtained on 99 years lease Survey bearing Nos.
2, 3, 4, 5, 6 and 7 situated at Deh Songal Taluka and District Karachi from one Baba Bir Puri (now deceased) for consideration of Rs.1,66,000 through a registered Deed on 1-10-1965 and obtained the posession of the said land from Baba Bir Puri in June, 1966. Therafter the respondent tried to get the said Survey Numbers mutated in her favour but the same could not be had as the Survey Numbers stood in the Record of Rights as evacuee trust property.
3. Threfore, under the law the mutation of the said land could only be had on the issuance of a No-Objection Certificate by the Deputy Administrator, Evacuee Property Trust Board, Karachi. For that purpose the respondent made an application on 6-10-1974 to the Deputy Administrator, Evacuee Trust Board. To obtain the said Certificate, she engaged the services of Hari Ram Bishenmal Sangasi, the Chella of Baba Bir Puri. The Deputy Administrator forwarded the said application to appellant No.2, the Chairman, Evacuee Property Trust Board, Government of Pakistan, Lahore. The said No-Objection Certificate was issued on 15-10-1974 to the said Chella who, however, suppressed it from the respondent for ulterior motives, with the result that the respondent had to file a Civil Suit bearing No.929 of 1978 against the Administrator, Evacuee Trust Property Board, Karachi, in the First Court of CiVil Judge, First Class, Karachi. During the proceedings of the said suit the said Chella of Baba Bir Puri filed the said N.O.C. issued in favour of the respondent by appellant No.2. The matter was thus again referred by the Administrator of Evacuee Property Trust Board, Karachi to appellant No.2, whereupon an enquiry was held to find out if such an N.O.C. was issued after judicial Enquiry. The respondent continued her efforts for some time to get clearance about the said N.O.C. from appellant No.2 and get the said Survey Numbers mutated in her favour by appellant No.3 (Deputy Commissioner, East Karachi), who had shown his inability to mutate her name in the Record of Rights as the property stood in the name of Binjrapur Trust but in vain. Ultimately, the respondent on 14-8-1980 filed Suit No.23 of 1980 in this Court for declaration and injunction praying, inter alia, for the following reliefs:-
(a) That it be ordered that NOC issued by the Chairman, Evacuee Property Trust Board dated 10-10- 1974, to the plaintiff and subsequently ratified by defendant No.2. On 15-10-1974, is valid, subsisting and enforceable for all purposes in law.
(b) That in the light of the directions and order of the defendant No.2 dated 15th October, 1974 the NOC issued by the Chairman, Evacuee Truk Board, Lahore be held good and enforceable in law.
(c) Permanent injunction restraining the defenants or their sub ordinates, agents, and servants not to give effect to any further orders in any manner whatsoever till the final disposal of the suit
4. The respondent, alongwith her suit, also filed an application under Order XXXIX, rules 1 and 2 read with section 151, C.P.C. for an interim injunction against the appellants. The summons and notices in the said suit were issued to the appellants for 17-2-1980.
On 17-2-1980 the Additional Registrar (O.S) held the summons and notices of the application under Order XXXIX, rules 1 and 2, C.P.C. as returned duly served on appellants 1, 2 and 3. The said appellants called on that day were absent. The matter was, however, adjourned to 24-2-1980. On 24-2-1980 the appellants were again found absent. The suit was, however, again put off to 25-3- 1980, on which date again none was present on behalf of the appellants. The additional Registrar (O.S.) debarred them from filing the Written Statement. Later on, the injunction application was fixed in Court for 5-4-1980. A notice for 5-4-1980 was issued to the appellants. On that date too none was present on behalf of the appellants. Thereafter on 29-4-1980 the suit came up for final disposal before one of us namely, Mr.Justice Naimuddin who was, however, pleased to order the issue of reminders to appellants Nos. 1 and 2. Accordingly on 30-4-1980 reminders were sent to appellants Nos. 1 and 2 for 18-5-1980 but no order was passed on that date. The matter was then taken up in Court on various dates viz. 28-5-1980, 16-7-1980, and 18-8-1980, but the appellants, though already served, failed to make any appearance in the Court. On 18-8-1980 the Court brought on record the affidavit in ex parte proof filed by the respondent ,on 12-4-1980, alongwith certain documents which were duly exhibited. The suit was then adjourned to 25--8-1980 for arguments and then to 31-8-1980 when it was decreed ex parte. On none of these dates the appellants were present.
5. On 10-9-1980, an application under Order IX, rule 13 read with section 151, C.P.C. (C.M.A. No.3625 of 1980) was filed in this Court for setting aside the ex parte judgment and decree which was duly heard and dismissed by our learned brother, Nasir Aslam Zahid, J., which is now appealed against.
6. We have heard Mr.M.G.Dastgir. and Mr.M.Muhammad Ali Sayeed learned counsel for the parties at great length.
7. The learned counsel for the appellants contended that there was no negligence on the part of the appellants. They had entrusted the matter to the Advocate and they did not know, if the Advocate failed to attend the Court. Inviting our attention to the affidavits filed by the Advocate and his clerk, he submitted that the latter had kept the summons in the drawer and forgot them and thus he could not even inform the Advocate. The papers relating to the suit were, then, misplaced and he could lay his hands only on 9-9-1980, when he passed on the papers to the Advocate. It was a case of bona fide omission on the part of the Advocate and his clerk. He thus contended that, in any case, the party should not suffer for the omission or even for negligence of the Advocate. In support of his contention he relied on several judgments of the superior Courts namely,Seth Shivrattan G.Mohatta and another v. Messrs Mohammadi Steamship Co.Ltd. PLD 1965 SC 669, Retd. Brigadier !Hamid Hussain v. Choudhry Barkat Ali PLD 1977 Lah 2, Abdul Hamid Ismail v. Messrs Abdul Rehman Abdul Ghani PLD 1959 W.P. Kar 376, and M.A.Latif Faruqui v. National Bank of Pakistan PLD 1981 Kar.
646.
8. No doubt, in the first named case the Honourable Supreme Court held that it would be wrong to make the plaintiff suffer on account of his professional misconduct.
But there were other good reasons which seem to have prevailed on the Honourable Judges of the Supreme Court in that case for excusing the non-appearance of the plaintiff, viz. the date when the suit was dismissed in default of appearance had been declared as Eid holiday but the Court remained open because the Moon was not sighted on the previous evening. This by itself constituted a sufficient cause for excusing default in appearance by the palintiff on that date, and in any case, the counsel had put in appearance on their behalf though he asked for adjournment for filing power in his name, a request which in view of the fact that the learned counsel who was appearing for the plaintiff had gone abroad for treatment of his failing eye-sight merited to be accepted by the learned Single Judge. So the facts of the case cited are quite distinguishable from the facts of the present case before us.
9. In the second named case, which is a Single Bench decision of Lahore High Court, it was held that "if the somewhat negligence though not intentional is proved to have been committed it may be deemed to be fit to burden the defendant with costs. But, if it is proved that there was no negligence whatsoever on the part of the defendant the Court may set aside the ex parte decree without payment of any costs. As would appear from the facts of the present case, the learned Single Judge has directed that had there been negligence of the Advocate only he would have set aside the decree on payment of costs but, the appellants too were negligent.
10. The third named case relied on by the learned counsel for the appellants is also distinguishable on the facts of the present case. In the case cited, there was an understanding between the counsel for the plaintiff and the defendant to inform each other of the dates fixed for final hearing of the suit. In any case the counsel failed the appear on the date of hearing as he was upset due to serious illness of his son and so he failed to note the date of hearing fixed for the suit.
11. In the last named case, which was decided by a Division Bench of this Court of which one of us namely, Mr. Justice Naimuddin, was a member, who, while delivering the opinion of the Court, observed "that the Advocate or his client was duty bound to keep himself aware of the date of hearing fixed by the Court".
12. It will, thus, be seen that none of the cases cited by the learned counsel for the appellants have any direct bearing on the facts of the present case. The non-appearance of the party or his counsel has to be reasonably explained so as to enable the Court to form its opinion that there was a sufficient cause for the absence of the party or its Advocate on the date fixed. In this respect each and every case stands on its own footing and no hard and fast rule can be made as to what is the sufficient cause. The facts and circumstances of the cases cited by the learned counsel for the appellants before us are entirely different as to their nature and circumstances of default even if they go to show the negligence as compared to the facts and circumstances of the present case.
13. The learned counsel for the respondent to repel the contention raised by the appellants' counsel relied on a number of cases namely Mian Kamal Din v. Malik Muhammad Bashir and others PLD 1952 Lah. 456, Mst. Taj Begum and another v. Sultan Khan and 12 others 1968 SCMR 193 and Zulfiqar Ali v. Lal Din and another 1974 SCMR 162.
14. In the first case cited by the learned counsel for the respondent, the rule laid down by M.R.
Kayani, J. while delivering his opinion is that "once a party receives intimation of an action, it is for him to pursue it and to keep himself in touch with the proceeding either personally or through his counsel". In the second named case S.A. Rahman and Hamoodur Rahman, JJ., of the Honourble Supreme Court refused to grant special leave to appeal against the Order of the High Court and dismissed the application for readmission of in default. The relevant part of the judgment reads as under:- "The High Court took the view that either the learned Advocate concerned or his clerk had been grossly negligent in keeping track of the Letters Patent Appeal which was actually filed as long ago as 1959, and hence there was no sufficient ground for condoning the delay or restoring the appeal.
The petitioners now seek special leave to appeal from this order and all that has been urged on their behalf is that they should not be made to suffer for the negligence of their learned Advocate in the High Court. We are unable, however, to agree with this conten tion, for, who else should be held liable. Surely not the respondents, to whom a valuable right has now accrued by reason of the dismissal of the Letters Patent Appeal. They cannot be deprived of that right merely on the ground that the petitioners should not be made liable for their Advocate's negligence.
' That there was gross negligence by the counsel cannot be disputed. He did not even care to enquire about the progress of the appeal which had been filed by him till his clients' agent came to make enquiries. Such conduct clearly indicates that neither the learned Advocate nor his clerk were seriously interested in the fate of the Letters Patent Appeal which was, in any event, from an interlocutory order refusing stay of further proceedings in the suit. If the petitioners felt aggrieved by his conduct they should seek to have redress from him and not harass the respondents. This petition is wholly without any substance and is, accordingly, dismissed."
16. It is clear from the above judgment that the party cannot take shelter behind its counsel when the party itself is negligent.
17. In the third named case Hamoodur Rehman, C.J., and Muhammad Gul, J. of the Honourable Supreme Court refused to order re-admission of the for non-prosecution by the High Court, on the ground of default due to negligence of the counsel and though no negligence was proved on the appellant's part. The Honourable Judges observed as under:- "Learned counsel appearing in support of this petition has contended that the dismissal of the appeal for default was due to the negligence of the learned counsel and not due to any negligence on his part, and, therefore, the restoration should have been allowed.
' The contention is without any force. The mere fact that a litigant has engaged a counsel to appear 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."
18. In the above case the Honourable Judges laid stress on the question of the negligence of the Advocate alone. The observations as quoted above are quite pertinent to the facts of the present case before us. Rather a more serious situation exists in the present case because the learned Single Judge has not only held the counsel to be negligent but the appellants have also been held to be grossly negligent.
19. However, the broad principles which can be deduced from the above judgments, more particularly of the Supreme Court, may be summarised as below:-
(a) The matter dismissed for default can be restored or ex parte decree set aside.--
(1) even without payment of costs if there is no negligence of the party and its counsel and the circumstances are such that show sufficient cause for their non- appearance; j(ii) On payment of costs, in appropriate cases, if the unintentional negligence is that of the counsel and not that of the party. ,(b) The matter cannot be restored or ex parte decree set aside if the party and its counsel or any one of them have been grossly negligent in persuing the matter.
20. When we examine the facts of the present case in the light of the above principle's we find that at the early stage of the hearing of the application under section 9, rule 13, C.P.C. only two affidavits in support thereof were filed on behalf of the appellants: one by Mr.S.Azizul Hassan, Advocate and the other by his clerk, Noor Muhammad. According to the affidavit of the clerk, he had received the Vakalatnama under the covering letter dated 29-7-1980 of appellants Nos. 1 and 2 engaging Mr.S.Azizul Hassan, Advocate to appear for them in the said suit.
21. Mr.S.Azizul Hassan, Advocate in his affidavit has stated that his clerk informed him only on 9-9- 1980, about the papers and then he rushed to the Court from where it was found that the suit had already been decreed ex parte on 31-8-1980.
22. On 14-2-1982, the learned Single Judge, not being satisfied with these two affidavits, ordered the appellants Nos. 1 and 2 to file an affidavit, relating to notice/summons sent by this Court from time to time prior to the passing of the ex parte decree on 31-8-1980. In 2ompliance of the said order one Akhlaq Ahmed, Legal. Assistant of Appelants Nos. 1 and 2, filed affidavit dated 21-3-1982, on behalf of appellants Nos. 1 and 2. It will be advantageous, if the relevant para graphs of the said affidavit are reproduced in extenso to throw light on the conduct of appellants Nos. 1 and 2 as well as their counsel.The relevant paragraphs Nos. 5, 6, 7 and 8 read as under:- ' That annexure "A" is photo copy of the reply dated 21-2-82 received from the Evacuee Trust Property Board, Lahore. In this reply it is stated that no notice prior to 5-4-1980 was received in that Office and the notice received for appearance on 5-4-1980 was actually received in the office at Lahore on 5-4-1980 and this was without annexure. Another notice was received at Lahore on 10-5- 1980 for appearance on 18-5-1980. This notice was transmitted to the office of the Deputy Administra tor, Evacuee Trust Property, Karachi where it was received on 21-5-1980. The Deputy Administrator, Evacuee Trust Property, Karachi, sent the copy of the notice with Vakalatnama (signed by the Administrator (Southern Zone) to Mr.Azizul Hassan, Advocate on 2-6-1980 by way of abundant caution. The Adminis trator (Soutern Zone) also sent a letter dated 7-7-1980 annexure "C" to the Ministry of Religious Affairs & Minority Affairs, Islamabad and the Chairman, Evacuee Trust Property Board, Lahore with a copy to Mr.Azizul Hassan, Advocate vide letter No. LAK-4/A/802237, dated 7-7-1980 intimating that the matter has been entrusted to Mr.Azizul Hassan, Advocate by way of abundant caution. In the letter it was requested with (sic) them that the Vakalatnama(s) signed by the Chairman and Joint Secretary may please be sent. These were received and sent to Advocate under letter No. LAK/4A/8/2410, dated 29-7-1980.
6. That another notice was received in the office of the Chairman, Evacuee Trust Property Board, Lahore on 19-7-1980 for appearance, at Lahore after the expiry of actual date of hearing.
7. That another notice was received by the Evacuee Trust Property Board, Lahore on 29-7-1980 for appearance on 18-8-1980 without any enclosure. It was received on 9-8-1980 in the office of the Deputy Administrator, Evacuee Trust Property, Karachi and was handed over to the Advocate on 10- 8-1980.
8. That Annexure "B" dated 22-7-1982 was received from the Joint Secretary, Ministry of Religious Affairs and Minority Affairs, Islamabad. In this reply it is stated that no notice prior to 12-5-1980 was received in that office and the notice received for appearance on 18-5-1980 was received on 12-5-1980 without enclosure. The Federal Government vide its letter No.3(85)78/ ETPB, dated 26-5-1980 transmitted the copy of this notice to the Chairman, Evacuee Trust Property Board requesting him to defend the case on behalf of Federal Government. A copy of this Letter was also endorsed to the Administrator (Southern Zone) Evacuee Trust Property, Karachi and the Superintendent, High Court Sind, Karachi. This letter we received in the office of the Administrator, Evacuee Trust Property (Southern Zone), Karachi on 7-6-1980. The copy of similar notice received earlier from Evacuee Trust Property Board was already sent to the Advocate on 2- 6-1980 for defence as mentioned in para. 5 above."
23. The admitted position as it emerges out of the above affidavit is that on 5-4-1980, the notice had been received in the office of the appellants at Lahore for appearance in this Court on 5-4- 1980, and that this notice was without any enclosures. But no action was taken by appellants Nos.1 and 2 on this notice. The next notice was received by the appellants at Lahore on 10-5-1980 for appearance before this Court on 18-5-1980. This notice according to the above affidavit was transmitted to the Deputy Administrator, Evacuee Trust Property at Karachi, where it was received on 21-5-1980. The Deputy Administrator, Karachi sent a copy of the notice with Vakalatnama to Mr.S.Azizul Hassan, Advocate on 2-6-1980, by way of abundant caution. The Adminis trator Southern Zone sent a letter, dated 7-7-1980 to the appellants Nos. 1 and 2 with a copy to Mr.S.Azizul Hassan.
The letter and Vakalatnama from appellants were received and sent to Mr.S.Azizul Hassan, Advocate under cover of the letter, dated 29-7-1980. Another notice was received at Lahore on 19- 7-1980 for appearance on 16-7-1980. Yet another notice was received at Lahore on 29-7-1980, for appearance in Court on 18-8-1980, which was sent to the Karachi office of the appellants where it was received on 9-8-1980. There is serious contradic tion as to the transmitting summons/notices by the appellants Nos.1 and 2 to their Advocate as per affidavits filed by the learned Advocate for the appellants and his clerk on the one hand and the affidavit of Mr.Akhlaq Ahmed, legal Assistant of the said appellants on the other. Moreover, from the affidavit of Mr.Akhlaq Ahmed filed on behalf of appellants Nos.1 and 2 it is evident that the appellants failed to act in a manner as a prudent man ought to have acted in the circumstances of the case. They, in fact, took the matter very lightly inasmuch as they appear to have acted simply like a post office. They received summons and notices one after the other but took no care to attend to them in a careful manner. In spite of the reminder and repeated notices issued by this Court and received by the appellants they did not bother even to know, through their Advocate or otherwise, about theC case at all. They even did not care to make any appearance either before the Additional Registrar (0.S) or the Court, in spite of the fact that they have an office at Karachi. The Deputy Commissioner, Karachi appellant No.3 too in spite of service of summons/notices paid no heed to the proceedings of the said suit, even when ad interim! injunction was granted against him after several notices.
24. We are of the firm view that it is the responsibility of the party as well as its counsel to look after the case and take proper steps in the proceedings. The responsibility of the Advocate is still heavier inasmuch as he owes a duty to the Court also to help in the administration of justice. If the Advocate is found to be at fault which, in the circumstances of the case is inexcusable, the party cannot normally take shelter behind its Advocate. In a case where parties as well as Advocates both are found to be negligent in the persuit of the matter in a Court of Law, the restoration of the case dismissed for default or setting aside ex parte decree even on payment of costs will not meet the ends of justice. On the contrary, it will amount to putting premium on the default or negligence of the Advocate and the party. We ma here refer to the age old dictum that "law helps the vigilant and no the indolent". Had it been a case of simple absence of the party or hi Advocate on a single date as a consequence whereof an ex parte decre was passed the matter would have attracted sympathy from us. But in this case we find a series of wilful omissions and complete indolence on the part of the appellants, having not cared to know about the cas by not even writing a single line to the Advocate as to the progress in the case in spite of the receipt of repeated notice/summons from this Court. The appellants, in the circumstances of the case, have been grossly negligent.
25. As to the conduct of Mr.S.Azizul, Hassan Advocate for the appellants we feel that he had been equally negligent to conduct the case.
26. The learned counsel for the appellants requested us, at th close of his submissions, that we should take a lenient view as the matter pertains to Government. In this respect we may point out that the scales of justice must weigh equally between citizen and citizen or citizen and State and moreso in an Islamic State like Pakistan. We would, however, like to observe that this Court on the original side has shown sufficient indulgence inasmuch as the matter was put off, more than once, so as to enable the appellants to make their appearance.
27. The upshot of the above discussion is that there is no ground at all to interfere with the order of the learned Single Judge appealed against. The appeal is, therefore, dismissed but, in the circumstances of the case, there will be no order as to costs.