' This appeal under section 96 of the Code of Civil Procedure has been preferred against the judgment and decree passed on 31st August, 1973 by the learned 1st Additional District Judge, Hyderabad in First Class Suit No, 108 of 1968 whereby the suit of the plaintiff was decreed for Rs, 20,000 with interest at 6% from the date of suit till the date of judgment and for return of earnest money i.e. Rs, 11,000 to the plaintiff by the defendant.
' In the judgment I would refer to the appellants as the defendants nd the respondent (now represented by his legal representatives) as he plaintiff.
1. The facts leading to filing of this appeal briefly are that the plaintiff pursuant to the tender submitted by him was granted the work of construction and metalling of road from Haji Sawan to Rajo Khanani, Taluka Math, in the year 1968, that there were enhancements in the estimated costs of work to be carried out, that he completed more than 90$ of the work before the end of December, 1966, that five running bills by way of part payments total amounting to Rs,2,14,116 were made to him, and that work recording carried out by him was measured and duly entered in the Measurement Book kept by the defendants.
' The plaintiff further pleaded that he carried out further and extra work for which the defendants agreed to get the revised estimate sanctioned.
' The plaintiff also pleaded that thereafter he informed the defendant No,2 that the additional work in progress was being hampered for want of funds but he was assured that since revised estimate was under approval, payment could not be made in time. The revised estimate however, was sanctioned on 25-7-1966 and running bill of Rs, 41,247 was paid in three instalments after great difficulties experienced by the plaintiff. According to the plaintiff though the work was carried out properly and to the satisfaction of the defendants, on 23-2-1967 the defendant No,2, vide his letter, dated 23-2-1967 directed the plaintiff/respondent to stop the work till further orders without assigning any reason for this high-handedness and unwarranted action. It is not necessary further to go into other pleas taken in the plaint in support of the claim made in the suit, suffice would it be to state that the plaintiff prayed for decree against the defendants for Rs, 50,000 and also for return of the earnest money lying with them. He also claimed interest till the actual amount was recovered besides costs of the suit.
' The defendants filed their written statement in which the claim of the plaintiff was denied. It was also denied that extra work was awarded to the plaintiff. Inter alia plea was taken that the plaintiff failed to do the work according to the specifications and the payment of the plaintiff was stopped.
2. On the pleadings of the parties following issues were framed.
(1) Is the suit maintainable?
(2) Has the Court jurisdiction?
(3) Is the suit insufficiently stamped?
(4) Has the plaintiff any cause of action to bring this suit?
(5) Did the plaintiff carry out the work as per contract and according to the specifications and revised estimate made on 19-5-1967?
(6) Is the plaintiff entitled to the claim filed by him?
(7) Has the plaintiff overdrawn the bill to the extent of Rs,69,972?
(8) What should the decree be?
3. The plaintiff examined Abdul Latif P.W.1 (Exh. 42), he produced Measurement Book Exh. 42/1, Zaheeruddin P.W.2 Exh. 54 plaintiff's own son, Muhammad Farid P.W.3 Exh. 57, who worked as an Engineer from 1962 to 'January, 1967 with the appellant (District Council) and Ghulam Shah P.W.4, Exh. 66 overseer employee of the appellant who used to meausre the work and enter in the Measurement Book. The last witness was examined on 28th January, 1971 by the plaintiff who then closed his side.
4. (i) The defendants examined Mr. Mobin Ahmed D.W.1, Exh. 81 on 9th October, 1971. The said witness was Deputy Collector and S.D.M. Hala at the relevant time.
(ii) It appears from the record that after a number of adjournments on 4th July, 1972 the case was taken up at 9-00 a.m. By the Court and thereafter at 11-20 a.m. But on both the occasions neither the defendants nor their Advocates were present. In the circumstances the defendants' side was closed.
5. (i) Application under section 151, C.P. C. - (Exh. 99), however, was filed by the Advocate for the defendants on the same day in which it was stated that Mr. Kazi Tufail Ahmed Junior Advocate to the plaintiff's Advocate Mr. Suleman Memon, had appeared in Court when he was informed by the Reader of the Court that summons issued to the witnesses were not served but the plaintiff's Advocate refused to consent to adjournment. It was further stated that Mr. Kazi Tufail Ahmed, Advocate informed his senior Mr. Suleman Memon, Advocate of this stand of plaintiffs Advocate whereupon Mr. Suleman Memon reached the Court and had a talk with the plaintiff's Advocate and thus it was mutually decided by the two counsel, that defendant's Advocate (Mr. Suleman Memon) shall come at 1 0' Clock to attend the matter by which time the learned trial Court would be free from other cases. It was further stated that Mr. Suleman Memon had specifically informed the counsel for the plaintiff that in case the matter is taken up in the meantime he would inform the learned Judge about this mutual arrangement and that on the assurance of the plaintiff's Advocate he went to attend other Court where he had some cases. According to the application, the defendants' Advocate returend at 12-15 p.m. When he learnt that the matter was taken up earlier and the defendants' side was closed.
' On the pleas raised in the application it was prayed that the Court may set aside the order closing the side of the defendants and to permit them to produce evidence. This application was supported by the affidavit of Mr. Kazi Tufail Ahmed who however did noy assert in the affidavit that in his presence the mutual arrangement referred to in the application by Mr. Suleman Memon was arrived at between the latter and Mr. Obaidullah.
5(ii) Mr. Obaidullah, Advocate for the plaintiff, however, in his own counter-affidavit to the application denied the allegations made in the application moved for reopening of the side. He expressly denied that any mutual arrangement as stated in the application was arrived at between him and Mr. Suleman Memon, the Advocate for the defendants. It was further stated that Mr. Suleman Memon, Advocate for the defendants had not intimated him (Mr. Obaidullah) that he was going to attend any matter in other Court. It was also stated that Mr. Suleman Memon should first record his statement as to what actually was the talk between the two Advocates, so that thereafter he (Mr. Obaidullah) may rebut by stating correct facts if need so arose.
'Mr. Suleman Memon, Advocate however, neither, filed his affidavit nor recorded his statement to rebut the stand taken in the counter-affidavit. The learned trial Court by order, dated 27th July, 1972 dismissed the said application. The case thereafter was adjourned.
6. Before arguments, on the issues could be heard the Presiding Officer was transferred and thus the said suit for arguments was adjourned from time to time.
7. A perusal of the Court diary shows that on 28th February, 1973 the suit was received in the Court of the First Additional District Judge, Hyderabad by transfer and that the said Court adjourned the case to 20th March, 1973, when the Advocates for both the sides appeared before the transferee Court. Thereafter, on 6-4-1973, 26-4-1973, 19-5-1973, 14-7-1973 the case was adjourned on the applications made by the defendants' Advocate.
' On 27th July the case was adjourned by consent, while on 28-7-1973 it could not proceed due to want of time and was adjourned to 31-7-1973.
' On the last mentioned date again an application for adjournment was moved by the Advocate for the defendants whereupon the learned Court granted last chance and adjourned. Thus on 17th August, 1973 the arguments were heard and on 31-8-1973 the judgment was announced and the suit was decreed against the defendants as mentioned earlier.
' It may be pointed here that before the learned lower Court issues 1 to 3 were not pressed, while issues Nos.4 to 6 were answered in the affirmative and Issue No,7 was answered in the negative and decree accordingly was passed.
8. Aggrieved by the above judgment and decree the defendants preferred this appeal which was filed in this Court on 29th March, 1975.
9. At the time of arguments before this Court Mr. P.M. Amar who appeared for the appellants submitted that the only point which required consideration was as to whether the trial Court was justified to close the side of the appellants/defendants on 4th July, 1972. The counsel for both the sides were accordingly heard on the only point thus pressed before this Court on behalf of the plaintiffs/defendants.
' Mr. P.M. Amar, learned counsel for the appellant in support submitted that the appellant had made application for summoning his witnesses for 4-7-1972 but the same were returned unserved and that the absence of the counsel for the appellant/defendant when the case was called out before the Civil Judge was due to an express understanding reached between Mr. Suleman Memon, Advocate and Mr. Obaidullah, Advocate for the plaintiff/respondent. In support of the submission thus made the learned counsel placed reliance upon the affidavit filed by Mr. Tufail Ahmed Kazi, Advocate. He further submitted that the learned Civil Judge was legally not entitled to close the side of the defendants because of their absence or that of their Advocate on 4-7-1972 for the reason that on the said date Court could have proceeded under Rule 2 of Order XVII, C.P.C. And that Rule 3 of the said Order was not attracted. The learned counsel relied upon the case reported as Abdul Majid v. Wall Muhammad PLD 1963 Kar. 171 wherein it was held that the provisions of Order IX would not be applicable to ex parte decree passed under Order XVII, Rule 3, C.P.C. Unless the case was adjourned upon a request being made by the party concerned. No such question, however, arises in the present case for the reason that the impugned judgment was passed by the trial Court after recording of evidence produced by the plaintiffs/defendants and one witness had been examined on behalf of the defendants/appellants. The side of the plaintiff was closed on 4th July, 1972 as the defendants and their Advocate also, were absent on the said date when the case was called out at 9 a.m. And even thereafter at 11-20 a.m. The decree passed in the circumstances on merits by no stretch of imagination could be called a decree ex parte. It is important to take notice of the fact that the suit was filed in 1968, the side of the plaintiff was closed on 28th January, 1971, thereafter the defendants/appellants examined one witness, but on 4th July, 1972 due to absence of the defendants/ appellants and also their counsel, their side was closed and the application made for reopening the side was dismissed by order passed on 27th July, 1972. No step thereafter was taken by the appellants/defendants to challenge the said order. On the contrary, they continued to take part in proceedings, even appeared before the transferee Court (1st Additional District Judge, Hyderabad) on 20th July, 1973, 26th April, 1973, 14th July, 1973, 27th March, 1973, 28th July, 1973 and 31st July, 1973 and after the arguments of both the Advocates were heard on 17-8-1973 the judgment was pronounced on 31st August, 1973. We are now in 1985 and almost 17 years have passed since the suit was instituted. The plaintiff Who originaly filed the suit in the meantime died and his legal representatives have been brought on the record.
9-A. In the circumstances of the case the defendants/appellants who did not care to attend the Court on 4th July, 1973 (even if their Advocate was not present) I find nothing on record to justify the absence of the defendants, having a vast establishment. The settled law is that a party by merely handing over or entrusting the case to the Advocate cannot remain indifferent and is not absolved from pursuing the matter and attending the Court on the dates fixed for hearing/ evidence. Reference if need be made to the case of Zulftqar All v Lal Din and another 1974 SCMR 162 and Ahmed Hussain v. Aziz Ahmed 1979 CLC 629.
10. Mr. P.M. Amar learned counsel for the defendants/appellants then argued that an understanding was reached by Mr. Suleman Memon, Advocate for the appellants/defendants with Mr. Obaidullah, Advocate for plaintiff/respondent to the effect that the former would come at 1 O'clock to the Court of Civil Judge where the suit was fixed for hearing on 4th July, 1973 and that in case the matter was called out earlier the Advocate for the plaintiff/respondent would inform the learned Judge about the mutual arrangement arrived at between the two Advocates. It was submitted by Mr. Amer that on this assurance the Advocate for the appellant had left to attend another Court. I am afraid this submission of the learned counsel cannot be accepted as Mr. Suleman Memon, did not file any affidavit of his own in support of the assertion made in his application for reopening the case whereas Mr. Obaidullih, the Advocate for the plaintiff/respondent filed his own affidavit and denied expressly that any such arrangement was agreed upon. He further challenged and called upon Mr. Suleman Memon, the Advocate for the defendants to record his statement so that the same may be rebutted by stating the correct facts if need be. To the counter affidavit thus filed, neither any affidavit in rejoinder was filed nor Mr. Suleman cared to record his statement. In the circumstances the assertions made in the application which were not supported by the affidavit of the concerned Advocate Mr. Suleman Memon was rightly ignored by the trial Court while rejecting the application. I may refer here to the case of Islamic Republic of Pakistan v . Amjid Ali Mirza PLD 197'T SC 182 wherein the Honourable Supreme Court accepted the principle that statement made in affidavit would be accepted where no counter-affidavit has been filed on the record to controvert the statement made by the other side.
' For the abovementioned reason I am of the view that the absence of the Advocate for the appellant/defendant was not for sufficient cause and that in any case there is nothing on the record to explain as to why the defendants having a big establishment, sent no one from their office to attend the Court on 4th July, 1973. It was their obligation to attend the Court on the dates of hearing notwithstanding the fact, that they had entrusted the case to the Advocate.
11. The upshot of the above discussion is that in this litigation which arises out of contract entered into on 1st April, 1966 I find tha no valid reasons have been made out to interfere with the impugned judgment and decree passed on 31st August, 1973.
' Learned counsel for the appellant has not challenged the findings given on merits by the learned trial Court.
' This appeal is dismissed with costs. The appellant shall also pay interest @ 6% per annum on the decretal amount from the date o filing of this appeal till the amount is paid, besides the interest awarded by the trial Court.