' This application, under Order IX, Rule 13 read with section 151, C.P.C. Has been filed on behalf of the defendant No,2 against whom the suit was decreed ex parte by a learned Single Judge of this Court vide judgment dated 14-11-1983. This application was, in fact, disposed of earlier by my learned brother Ibadat Yar Khan (as he then was) by order dated 20-4-1987 but on an appeal, filed by the defendant No,2, the said order was set aside by a Division Bench of this Court vide judgment dated 26-4-1988 and the case has been remanded for a fresh disposal. The learned Division Bench was of the view that my learned brother had not adequately dilated upon the question, whether sufficient cause had been shown by the defendant for his absence in the case.
2. I have heard the defendant No,2 in person and Mr. S.A.Sarwana, learned counsel for the plaintiff.
3. According to the affidavit filed by the defendant's advocate, Mr. Mubarak Ahmed, alongwith the application, the matter had been listed in the weekly cause list but the name of the Advocate did not appear therein, with the result that the date of hearing of the case was not noted by him.
Thereafter the case was fixed for hearing on 8-11-1983 but on account of oversight the Advocate once again failed to notice the same in the daily cause list with the result that the side of the defendant No,2 was closed after evidence on behalf of the plaintiff was recorded by the Court. The learned counsel for the defendant No,2 also failed to appear on 10-11-1983 when the case was fixed for arguments and finally the judgment in the case was passed on 14-11-1983.
4. Mr. SA.Sarwana, learned counsel for the plaintiff has vehemently opposed this application, firstly, on the ground that negligence by the counsel to notice the case in the cause list is not excusable and, secondly, on the ground that the application, which has been filed under Order IX, Rule 13, C.P.C. Is not maintainable in view of the fact that judgment was passed by the learned Single Judge on merits after discussing all the issues involved in the case and, therefore, the same can be set aside only in appeal and not under Order IX, Rule 13, C.P.C. Reliance has been placed by Mr. S.A.
Sarwana on the cases of Sawab Khan v. Dr. Abdul Hameed PLD 1968 Lah. 1224; Iqbal Ahmad v. Mst.
Sharif-un-Nisa PLD 1967 Lah. 1098; Mrs. Zia Iqbal Samad Khan PLD 1974 Lah. 25 and Muhammad Munawar v. Ch.Khurshid Alam 1978 SCMR 266. In all these cases the failure of the counsel to notice the case in the weekly and daily cause lists was held to be inexcusable.
5. The defendant No,2 has, however, invited my attention to the ease of Lt.- Col. Mirza Munawar Beg v. Mst. Hassan Bibi 1981 SCMR 160, wherein an omission to mention full name of the counsel for the petitioner in the cause list was held to be sufficient cause for the counsel's absence and consequently the writ petition dismissed for non-prosecution was restored to its original position.
Reliance has also been placed by the defendant No,2 on the case of Board of Trustees of the Port of Karachi v. Punjab Industrial Development Board 1987 CLC 218 wherein an ex parte order passed against the defendant was set aside on account of the omission made by his counsel to notice the case which was published in the cause list.
6. Turning once again to the facts of the instant case, it has not been denied that the name of Mr. Mubarak Ahmed, learned counsel for the defendant No,2 had not appeared in the weekly cause list.
No doubt, his name did appear in the daily cause list but the possibility cannot be ruled out that the counsel failed to notice the case as he was not expecting the same to be posted for hearing during that week. In such cases there is always a possibility of human error, therefore, a question arises, should a party be penalised for the same? It may be pointed out A that although gross negligence cannot be condoned but minor lapses made by the parties or their counsel are generally condoned. The cases referred to by Mr. SA. Sarwana are clearly distinguishable because in the present case, as pointed out above, the name of the defendant's counsel did not appear in the weekly list which was not so in any of the said cases. I am consequently of the view that sufficient cause has been shown by the defendant No,2 for recalling of the ex parte judgment.
7. However, this does not finally dispose of the case as the next objection of Mr. S.A. Sarwana is that the present application under Order TX, Rule 13, C.P.C. Is not maintainable in view of the fact that the judgment has been passed in the case on merits. The expression "ex parte" although has not been defined anywhere in the Civil Procedure Code but it is a Latin expression and it means "from one party or side". According to Wharton's Law Lexicon (14th Edn.), it means "a B proceeding by one party in the absence of the other". In Aiyar's Law Lexicon (1940 Edn.), it has been defined as "of the one part; from one party (Tomlin's Law Dictionary)". The order passed by the learned Single Judge of this Court dated 8-11-1983 shows that evidence was recorded on behalf of the plaintiff and thereafter the side of the defendants was closed on account of their and their counsel's absence.
The case was then adjourned for arguments to 10-11-1983. Since again the defendants and their counsel remained absent, the case was posted for announcement of judgment on 14-11-1983 after arguments were heard by the learned Judge in absence of the defendants and their counsel.
' Consequently, although the judgment was given on merits after considering all the issues involved in the case but the same was in absence of the defendants. In fact, as has been pointed out above, from 8-11-1983 the case proceeded one sided, in absence of the defendants. Therefore, in my view, the judgment was ex parte notwithstanding the fact that the same was given on merits. It is no one's case that the learned Single Judge proceeded under Order XVII, Rule 3, C.P.C. Or that the same provisions were attracted under the circumstances of the case. The objection of Mr. S.A.
Sarwana is, therefore, overruled.
8. In the result, the application is granted and the judgment dated 14-11-1983 is set aside as against the defendant No,2.