' Facts necessary and relevant for decision of the present petition in brief are ; National Bank of Pakistan instituted a civil suit for recovery of Rs, 47,027.33 against Mr Khalil-ur-Rehman Daudi in the Civil Court at Lahore. Suit was defended by the defendant. Necessary issues arising from the pleadings of the parties were raised by the trial Court. Bank concluded its affirmative evidence when the civil suit, under an Administrative order, was transferred from the Court of Mr.. Abdul Hamid Niazi, Civil Judge, Lahore, where it was sub judice, to the Court of Mr. Ikramul Hague, Civil Judge, Lahore, without any prior notice to the plaintiff Bank. Suit was dismissed in default of appearance of both the parties on 4-4-1978 by the transferee Court.
2. Application under Order IX, rule 4, C. P. C. For the restoration of the suit was moved on 25-7-1981 by the plaintiff Bank. Trial Court without issuing notice to the opponent and calling for reply, after going through the Court's record, dismissed the restoration *petition on 12-11-1981. The Court, on 29- 10-1981, made the order which reads :- {{URDU TEXT}} L 12-11-1981 j1/z. reK..
' On 12-11-1981 the Court dismissed the restoration petition. Relevant observations are :- ......... The only contention of the learned counsel for the petitioner that no notice was issued by the transferee Court stands belied from the record on the file. It is very much on the record that counsel for the petitioner was present before the transferee Court on 5-2-1978 and then the suit was adjourned for 4-4-1978-for evidence of the petitioner. Since counsel for the petitioner is there on the record before the transferee Court, question of issuance of fresh notices to the petitioner bank does not arise. The petitiop under section 5 of the Limitation Act merits dismissal and the same stands hereby dismissed. As petition under section 5 of the Limitation Act stands dismissed, petition under Order IX, rule 3. C. P. C.-filed on 25-7-1981 challenging the order of my learned predecessor dated 4-4-1978 by which suit was dismissed in default is awefully time-barred and the same is hereby dismissed."
3. Order of the trial Court dismissing restoration petition was assailed revisional jurisdiction before learned Additional District Judge, Lahore. Bank, however, did not succeed in satisfying the revisional Court, that it had sufficient cause to plead for restoration of the suit dismissed in default of appearance. Learned Additionat District Judge, in para. 3 of the order observed :-- "3. 1 have heard the learned counsel for the parties and have also gone through the record. The application was moved after more than 3 years of the dismissal of the suit. The period prescribed for such an application is 30 days under Article 163 of the Limitation Act and this period cannot he extended wider section 5 of Limitation Act. Therefore, the application, on the face of it, being awfully time barred, the trial Court was right in dismissing the same and I take no exception to these orders which are hereby upheld and this revision petition is hereby dismissed with costs.-'
4. Correctness of the impugned orders has been brought under challenge in the present constitution petition. Learned counsel for the parties have been heard and with their assistance record has been gone through. Learned counsel for the petitioner-National Bank of Pakistan has contended that suit was transferred from one civil Court to another under an administrative order without notice to either of the parties. Transferee Court, therefore, was bound to issue a fresh notice to the parties. Unless such a notice/intimation was issued by the transferee Court, civil suit could not have been dismissed for.Default in making appearance before transferee Court. It was because of the absence of notice that both the parties defaulted in appearance on 4-4-1978. Since the basic order was void, no period of limitation applied for its setting aside. Learned counsel also argued that the Court erred in law in dismissing the restoration petition without affording an opportunity to the plaintiff Bank to prove and substantiate the averments made in the restoration petition. In the absence of such an opportunity, the restoration petition, has not been properly disposed of and in result, the rights of the bank, have been seriously prejudiced. Revisional Court, despite the fact that this point was seriously agitated, has not adverted to it in its order impugned in the present proceedings. It was also denied that the counsel for the bank appeared before the transferee Court. Assuming it to be so, that the Counsel appeared on one of the dates before the transferee Court, since no intimation was given to the bank by the Court or Legal Advisor, the bank had sufficient cause for its non-appearance on the adjourned date. In case opportunity was afforded, the bank, would have clearly succeeded in showing that it had `Sufficient ground to offer for its non-appearance on, 4-4-1978.
5. Learned counsel for the respondent strenuously defended both the impugned orders, It was contended that the record itself visibly demonstrated that the bank's counsel was present in Court on 5-2-1974. Nothing was needed to be done by the transferee Court then, as the plaintiff had sufficient knowledge of the transfer of the civil suit. It was also stated that it was the responsibility of the bank to keep itself in touch with his counsel and the proceedings of the Court. Plaintiff, had no cause much less sufficient cause to explain its default. Restoration petition., was also hopelessly barred by time. Impugned orders, therefore, were competently passed by the Courts in proper exercise of their jurisdiction.
6. I have given careful consideration to the facts and taken dile notice of the contentions raised by learned counsel in support of their respective stands. Parties are not in dispute about transfer of the civil suit from one civil Court to another under an administrative order. It is also correct that no notice, seems to have been issued to the parties by the court transferring the civil suit. From the records it also transpires that the transferee Court also did not issue a separate notice after the receipt of records. It is well-established on authority that notice of transfer in such circumstances was 4 necessary to be issued so as to intimate to the parties about transfer of the . Suit from one Court to another. In Aziz Ullah Khan and 4 others v. Irshad Hussain and 2 others (I) a learned single Judge of this Court, taking note of several precedents, sections 24 and 24-A of Code of Civil Procedure observed :- "7. The main question which needs determination at this stage is as to whether the notice was necessary to be issued to the absentee defendants for 27th of February, 1964 or not. When the case was put up before this successor Court on 1st of February, 1964,
(I) PLD 1975 Lab. 879 no notice had been issued to any of the parties for that date while the case was directed to be put up on 27th of February, 1964. It has .Cen argued on the basis of section 24 (a) (2), C. P. C. That it was obligatory for the absentee-defendants to appear before the successor Court on 27-2-1964 to which the case had been transferred by the learned District Judge. The record does not show at all that the learned District Judge had transferred the case to the successor Court in the presence of the parties or at least they were otherwise directed in compliance with his order to appear before the successor Court on a particular date. After the Civil Judge was transferred before 27th of January, 1964 for which date, the case was fixed for evidence, the case was adjourned to 27-2- 1964, by his Ahmad and not by any Court. It is an admitted position in law that the note given by the Ahmad to the effect that the case was adjourned to 27-2-1964, cannot be treated to be an order having been passed by a Court. Subsection (2) of section 24 (a) requires that where a suit is transferred from one Court to another otherwise than on the application of a party, parties thereto shall appear before the Court from which the suit is to be transferred on the date already fixed for their appearance before the Court and such Court shall then corrmunicate the order of transfer to such parties and direct them to appear before the Court to which the suit is to be transferred, either on the same date or at least the date as may be reasonable. The circumstances as discussed above, do not show, that after the Civil Judge was transferred before 27th of January, 1964, the parties to the suit ever appeared before any Court which directed them to appear before the transferred Court on a particular date. If the absentee defendants who had joined the proceedings on 19-11-1963 had been directed by a Court from which the case was transferred or even by any Court to appear on a particular date before the successor Court, then they were bound under the provisions of section 24 (a) (2) to appear before the said Court, failing which they could be proceeded against ex parte. It has been argued that in the presence of the said provision no notice was required to be issued to the absentee defendants for their appearance before the Court to which the case was transferred. It is further argued on the basis of Malik Kamal Din v. Malik Muhammad Bashir and others PLD 1952 Lah. 456 that after the summons had been received by the defendants in the suit. They were bound to pursue the matter and keep themselves in touch with the proceedings either personally or through their counsel and no fresh intimation was required to be issued to them in relation to the transfer of the case. I am afraid this contention has no force, nor the case cited above is applicable to the facts of the present case. In that case the difference between the word `summons' .And 'notice' was under discussion and further as to whether the summons in a case were required to be issued again to the parties during the proceeding. It was held that the word `summon' used under Article 164 of the Limitation Act, refers to the first summons to be issued to the defendants after the institution of the suit. It was further held that the Court does not approve for issue of subsequent summons for. Appearance, while holding this the 'learned Judges of the High Court also made an observation that subsequent intimation to the parties in respect of a transfer of a case from one Court to another is made by what is called ,a 'notice' and that the two terms are substantially different. It has nowhere' been held that no notice is required to be issued to the absent parties on transfer of a case by the transferee Court. The provision as contained in section 24 (a) (2), C. P. C. Nor as contained in para. 6 Chapter XIII, Volume I of High Court Rules and Orders was under discussion in the case referred to above. Para. b provides as follows :- "6. When a case is transferred by administrative order from one Court to another, the Presiding Officer of the Court from which it has been transferred shall be responsible for informing the parties regarding the transfer, and of the date on which they should appear before the Court to which case has been transferred. The District Judge passing the order of transfer shall see that the records are sent to the Court concerned and parties informed of a date fixed with the least possible delay. When a case is transferred by judicial order, the Court passing the order should fix a date on which the parties should attend the Court to which the case is transferred."
7. Trial Court in the impugned order by reference to its own record observed that Bank's counsel was present on 5-2-1978 as his presence was shown marked in the order sheet. Relying on this fact alone, Court found that the plaintiff Bank was posted with knowledge and had no cause to offer for its non-appearance on 4-4-1978 when the suit was dismissed in default. Mr. Ali Hazoor Najfi, Advocate, who represented the bank before the civil Court, has sworn an affidavit that so far as he could recollect, 'no notice in writing was received by him from the transferee Court. In any case whether counsel was present on 5-2-1978, was a fact disputed by the bank. In case of the dispute, the matter needed examination in the light of the evidence to be produced by the plaintiff Bank. On 4-4-1978, both the parties had absented. Suit accordingly was dismissed under Order IX, rule 3 read with Order XVII of the Code of Civil Procedure. Restoration petition was moved under Order IX, rule 4 of the C. P. C. Points which call for decision are :- (i)Whether any notice was issued by the transferring or transferee Court about the transfer of the civil suit from one Court to another to the parties or their counsel ?
(ii) If such a notice was issued, and received by a counsel whether he communicated the intimation to the platintiff, if not, what was its legal effect on the rights of the plaintiff Bank ?
(iii) Whether as shown in the order sheet, counsel for the plaintiff, entered appearance on 5-2-1978 and had knowledge of the suit ?
(iv) What is the period of limitation applicable to a restoration petition in case no notice was issued or served on the party ?
8. In Shop Jinda Ram-Ram Kishen through Jinda Ram v. Fayira (1) Agha Haider, J. Observed :- "Where a party has received no information whatsoever of the transfer of the case, he cannot be allowed to suffer for something for which he is not really responsible. The machinery of the Courts in this country is a complicated one, and it is too much to expect trom unordinary litigant to follow the administrative changes that take place as regards the distribution of the work between the various Courts. If in the absence of such information the case is decided. Against him in his absence, the Court should restore the case on his application."
(1) 165 I C 563 ' In Abdur Ruhman v. Allah Ditta and others (1) B. Z. Kaikaus, J., as his Lordship then was, observed.- "If there be sufficient cause for personal non-appearance of the plaintiff, that is a good ground for restoration of suit even though it may have been possible for a plaintiff to make arrangements for appearance through somebody else for no party to a suit is under any obligation to engage counsel. Restoration of a suit may be granted where there was sufficient cause for personal non- appearance of a party even though a counsel for the party was negligent in appearance,"
' The strength of the rule laid down in the afore noted case has considerably been shaken in Zulfigar Ali v. La! Din and another (2) where the Supreme Court of Pakistan on this aspect observed, "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." In Staya Pal and others v. Sant Ram and others (3) Jai Lal, J., observed :- .... It appears that the case was originally pending in the Court of another Judge who was transferred and was subsequently to be heard on the 14th January, 1932, by another Judge, who issued a notice to the plaintiffs personally, to their counsel and to the defendants to appear in his Court on the 14th January, 1932. The notice issued to the plaintiffs personally was not served. The notice to their counsel was tendered to him but he declined to accept it on the ground that he was no longer representing them. The note made by the counsel on the notice was brought to the notice of the learned Judge below on the 5th January, 1932, but he took no action either to serve the plaintiffs personally or to inform counsel that service on him would be considered to be service on his clients. On the 14th January, 1932 nobody appeared for the plaintiffs and the trial Court held that the counsel was not entitled to withdraw without the permission of the Court and as he had not obtained such permission, service on him must be deemed to be service on his clients and therefore he dismissed the suit. In my opinion, in view of the facts stated above, it was unfair to penalize the plaintiffs for the conduct of their counsel even if it was illegal, and especially because the failure of the counsel to accept service was brought to the notice of the Court in sufficient time to enable it to serve the plaintiffs personally When a suit, has been dismissed under Order IX, rule 3, C. P. C. An application for its restoration lies under Order IX, rule 4 of the Code. If the plaintiff succeeds in showing that he had "sufficient cause" for his nonappearance on the date fixed for hearing, then obviously he gets the relief of restoration.
Emphasis is placed on "sufficient cause". What is "sufficient cause", is not susceptible of an exact definition applicable to all sets of facts and circumstances. Each case is to be judged upon its own peculiar circumstances. However, the preponderant view of the superior Courts is that strict view of the "sufficient cause" should not be taken as it deprives a
(1) P D 1957 (W. P.) Lah. 619 (2) 1974 SCMR 162
(3) AIR 1934 Lah. 91 party to have his case considered and decided on merits from a Court of justice.
Proceedings, under Order IX are "original proceedings" by virtue of section 141 of the Code of Civil Procedure. If this be the position, the plaintiff bank had a right to lead evidence in support of the averments made in the restoration petition explaining the circumstances culminating in the C default on 4-4-1978 dismissing the suit in default. This right, could not be denied to the Bank. Trial Court proceeded to dispose of the restoration application without conceding the right to the plaintiff bank to lead evidence in support of the restoration application. The view taken by me is supported by decision in case Firm Kura Ram Naiki Rain v. Jaimal (1), Civil suit, involved recovery of a huge amount plaintiff has already concluded his evidence. If the bank succeeds in proving what is stated in the restoration petition, it may, amount to a sufficient cause.
11. Question of limitation, is deeply linked with the decision with other related questions. Article 163 of the Limitation Act, 1908 provides a period of 30 days to set aside a dismissal order for default of appearance. Terrains a quo is the date of dismissal. The Article would apply only if the dismissal order was properly covered under Order IX of the Code. If the dismissal order is void ab initio or passed without jurisdiction, is it still necessary that the dismissal should be set aside within 30 days ? Answer I plain "no". There can be no default of appearance when the plaintiff had no knowledge of the date of hearing fixed by the Court. Dismissal in default strictly speaking, may then not fall under Article 163 of the Act. In that eventuality the Court in exercise of its ',there powers under section 151 of the Code could grant restoration. Limitation will then be regulated under Article 181 of the Limitation Act. If the Court reached a conclusion that the plaintiff was not at all aware of the date of hearing and was also not informed about the change of Court, plaintiff, could then legitimately rely on the inherent powers of the Court under section 151 of the Code.
' Both the Courts, have, therefore, not proceeded in accordance with law in deciding the restoration petition. Result is that the petition is allowed, impugned orders passed by the Courts below are set aside and declared to have been passed without lawful authority. Necessary corollary of the above declaration is that restoration petition, will be deemed to be pending before the Court requiring decision afresh in accordance with law after affording an opportunity to the plaintiff bank to lead evidence in support thereof. Copy of the order be sent to the trial Court to enable it to proceed further in the matter.
(1) AIR 19"7 Lah. 239