1. This Revision petition is filed against the judgment dated 30-7-1986 passed by the Mid Additional District Judge, Karachi (South) whereby the appeal filed by the petitioner was dismissed and the order passed by the XVth Senior Civil Judge, Karachi was affirmed. The facts leading to the filing of the above revision are that the respondent filed a suit for recovery of Rs.24,806.98 against the petitioner. The petitioner's counsel filed power of attorney before the trial Court on behalf of the petitioner on 25-9-1983 and the suit was adjourned to 10-10-1983. On 10-10-1983 the sqit was adjourned on the application of the petitioner to 20-11-1983. Again on 20-11-1983 the suit was adjourned on the application of the petitioner to 21-12-1983. On this date KESC filed its written statement whereas the petitioner and his counsel were absent. An ex parte order was passed and the petitioner was declared ex parte. The suit was adjourned for settlement of issues to 14-1-1984.
2. The respondent filed an application for striking off the name of KESC. This application was allowed by --order dated 8-2-1984. The case was adjourned to 21-2-1984. Again the case was adjourned to 21-2-1984. On 21-2-1984 the respondent filed affidavit in ex. Parte proof. The suit was decreed on 4- 3-1984. The respondent filed execution application No. 1 of 1984. The notice of execution application was served upon the petitioner. The petitioner filed application under Order IX, Rule 13 on 15-16-1984.
3. The case of the petitioner as set out in the affidavit is that since after having engaged the said Advocate Naushad Shafqat he was not aware of the proceedings which was the responsibility of my Advocate. The, respondent filed counter-affidavit wherein he denied the allegations made in the application. The trial Court dismissed the application as it was filed after lapse of eight months.
4. The petitioner went in appeal before the appellate Court which was also dismissed.
5. The application for setting aside the decree was contested by the plaintiff/respondent on the ground that no sufficient cause had been shown for not preferring the application for setting aside.
6. The ground take, by the petitioner that after engaging a counsel he did not attend the Court as after engaging counsel he was not supposed to appear before the Court. This ground did not appeal to reason. The trial Court found that application was moved after lapse of eight months, the petitioner had shown his negligence, which could be presumed to be deliberate to prevent the execution of decree as the petitioner was in full knowledge of the proceedings of the case pending against him.
7. The appellate lower Court 'found that neither the petitioner nor any of his employees made any efforts to contact the counsel or the Court for having the knowledge of the. Progress of the case.
8. The appellate lower Court found that the allegation that his counsel assured him on two or three occasions regarding the progress of the case is belied from the record of the case as on one date Mr. Naushad Shafqat was out of station whereas on the other date the petitioner himself appeared before the trial Court. Thus between the date of service and date: of ex parte order only two adjournments were allowed by the trial Court and during which the petitioner had no occasion of seeing his counsel, which shows his negligence.
9. The petitioner being aggrieved filed the above revision. I have heard Mr. Farooq H. Nack in support of the Revision. The respondent though served remained absent.
10. Mr. Farooq H. Nack learned counsel for the petitioner contended that Mr. Naushad Shafqat, Advocate gave up his practice and after leaving up his law practice, he did not give any notice either to the petitioner or to the Court. Hence his responsibility to conduct the case or present the case of his client in Court had not come to an end and for his iron-appearance. It was he to be blamed and not the petitioner. This contention was rejected by the Louver appellate Court on two grounds. Firstly this ground was not taken in the application for setting aside the ex parte decree and secondly Rule 3 of the Sind Civil Court Rules is not applicable in the facts of the case.
11. The learned counsel for the petitioner urged the same point before me. It. Is an admitted position that this ground was not taken in the application or in the affidavit. Secondly Rule 43 of the Sind Civil Court Rules is not applicable to the facts of the instant case. Reliance is placed on 1974 SCMR 162, 1976 SCMR399and1982SCMR1229.
12. 1974 SCMR 162--- a second appeal was dismissed in default by a learned Single Judge of Lahore High Court and the Division Bench of the Lahore High Court dismissed in limine the appeal filed against the order, The matter came up before the Supreme Court in a petition for special leave to appeal and it was argued on behalf of the petitioner that the dismissal of the appeal in default was due to the negligence of the counsel and not due to the negligence on the part of the petitioner and, therefore, the restoration should have been allowed This contention was not accepted and the Supreme Court 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.
13. Ir. The circumstances of this case, when no one appeared when the appeal was called on the Court had no alternative but to dismiss the appeal in default. The refusal to restore was also fully justified in view of the fact that the ground made out in the petition for restoration was found to be untrue.
14. The petitioner could not legitimately take any exception to this order. The appeal was, therefore, rightly dismissed by the Division Bench and we see no reason to interfere.
15. 1976 SCMR 399, a petition for special leave to appeal had been dismissed-for non-prosecution by the Supreme Court and an application for restoration was also dismissed in spite of the fact that the Advocate for the petitioner was ill on the date of hearing, for the reason that neither the Advocate on record nor the petitioners appeared on the date of hearing.
16. 1982 SCMR 1229, the Supreme Court was not impressed with the contention that the appellant was under no obligation to pursue his case and his case had gone by default entirely due to the negligence of his counsel. The Supreme Court took note of the fact that the High Court on a thorough re--examination of the explanation furnished by the appellant in support of his non-- appearance had come to the conclusion that the appellant himself was negligent by not keeping in touch with his counsel when circumstances indicated that he was available in Karachi. A reference was also made in PLD 1965 SC 669 and it was observed that the decision in that case did not proceed solely on the basis that the party should not suffer on account of the professional misconduct of his Advocate but further reasons were given in support of the order of the High Court. It was, therefore, observed that PLD 1905 SC 669 has no authority for the proposition that a party cannot be made to suffer on account of the negligence of his counsel in the conduct of proceedings before the Court.
17. A party can be made to suffer for the negligence of his Advocate but generally the Court also examines the conduct of the party. If the party is also at fault or guilty'of carelessness or negligence, it suffers for its default and for the fault of its Advocate. But where the party is not at all at fault and is not guilty of any carelessness or negligence, in view of the special circumstances of the case and save the party from suffering grave injustice or hardship, the Court may not penalise the party for the negligence of its Advocate.
18. It is in the light of the principles that I propose to dispose of this revision.
19. The learned Civil Judge as well as the learned Additional District Judge have stated in their orders that the petitioner did not give any attention to the filing of written statement. They have further found that no step was taken for filing of the written statement by the petitioner and it was incumbent on him to make inquiries as to the progress of the proceedings and that he had not acted with reasonable diligence and was negligent in defending the suit. The learned Civil Judge dismissed the application. The learned District Judge dismissed the appeal.
20. I have referred at some length to the reasons upon which the learned Additional District Judge based his conclusion because it must, in my opinion, be borne in rnind that I have been asked to interfere in this case with orders made by .The Courts below in the exercise of their discretion. That discretion must, of course, be exercised judicially and not arbitrarily but if it has been exercised judicially, this Court cannot, in my opinion, substitute its discretion for that of the Civil Judge or Additional District Judge.
21. This revision application is dismissed. In the circumstances of the case, I make no order as to costs.
22. The record will now be returned to the executing Court without delay.