1. ' This in an application under Order 41, Rule 19, C.P.C. For restoration of First Rent Appeal which was dismissed for default on 11-5-1989. The brief facts giving rise to the present application are that the above First Rent Appeal was dismissed for non-appearance of the appellant and his counsel on 11- 5-1989. On 20-5-1990 the appellant moved an application for restoration of the above appeal on the ground that he was vigilant and had inquired from his Advocate Mr. Warsi about the date of hearing, who told him that the appeal will be ripe for regular hearing by end of 1990. That on 12th May, 1990 bailiff of First Rent Controller, Karachi, West, came to serve him with notice of execution application when it was revealed that his appeal was dismissed for non-prosecution on 11-5-1989.
2. He was surprised and approached his counsel and made inquiries from him who explained to him that since he had not paid him full fees, he did not appear before the Court to argue the appeal. He told his Advocate that it was settled that fifty per cent of the fees shall be paid at the time of admission, and the remaining balance was to be paid at the final hearing. That the learned Advocate did not inform him about the date of hearing, and that he (appellant) was not aware that the appeal was fixed on 11-5-1989. That as soon as he came to know about the above dismissal order, he engaged another counsel who appeared before this Court and submitted an application for restoration of the appeal. That his absence was not wilful.
3. ' The attorney of the respondent has filed counter-affidavit in which he has stated that the restoration application is not maintainable in law, and the appellant and his counsel were absent even on the earlier date of hearing i,e. 20-4-1989. That the appellant has failed to show sufficient cause for his nonappearance and that of his Advocate. That according to the appellant he came to know on 12th May, 1990 that his appeal was dismissed but the application was filed for restoration on 20-5-1990. That the application is hopelessly time-barred and the appellant himself was negligent in persuing his case and, therefore, the application is liable to be dismissed.
4. ' I have heard Mr.. Muhammad Yousuf, learned counsel appearing for the appellant. Mr. Zaidi, learned counsel appearing for the respondent, and have gone through the documents.
5. ' It was contended by Mr. Muhammad Yousuf, learned counsel for the appellant that it was due to negligence of the learned counsel for the appellant that the appeal was dismissed in default and the appellant could not be made to suffer for the negligence of his counsel. In this connection he has relied upon the following decisions 1985 SCMR 2064, 1986 CLC 429.
6. ' Mr. Khizar Askar Zaidi learned counsel appearing for the respondent has contended that the application was hopelessly time-barred and there was no condonation application from the side of the appellant nor Section 5 of the Limitation Act applies to the cases under Sindh Rented Premises Ordinance, 1979. It was further contended that the appellant and his counsel were responsible for gross negligence inasmuch as even on the previous date of hearing i,e. 20-4-1988 they did not appear nor there was intimation from them. The question of payment of fees was between the appellant and his counsel and Court had nothing to do with the same. That no sufficient cause has been shown for the non-appearance of the appellant and his counsel and, therefore, the dismissal order may not be set aside and the appeal may not be restored to file. In support of his contention the learned counsel has relied upon 1974 SCMR 162, 1982 SCM R 1229, 1982 SCMR201, 1970 SCM R 76 and 1990 CLC621.
7. ' I have considered the contentions of the learned counsel. The appeal was admitted on 2-2-1987, and it came up for regular hearing for the first time on 20-4-1989 but neither the appellant nor his counsel were present except Mr. Zaidi appearing for the respondent was present, and therefore, the matter was adjourned. Again the appeal came up for regular hearing on 11-5-1989 when the appellant and his counsel were called absent. Mr. Zaidi for the respondent was present. There was no intimation from the appellant or his counsel and therefore, it was dismissed in default. The appellant filed restoration application on 20-51990, in which there is absolutely no explanation about absence of the appellant and his counsel. The case of the appellant in his affidavit is that his Advocate had told him that the matter will be ripe for regular hearing by the end of 1990, and therefore, he did not care to inquire about it. It is further stated by him that when he came to know about the dismissal of the appeal he contacted his Advocate who on inquiry intimated him that since he had not been paid full professional fees, therefore, he did not appear before the Court to argue the appeal. This shows that the learned counsel appearing for the appellant was aware about the date of hearing but he did not appear in the Court as he was not paid part of his remaining fees. The appeal was admitted on 2-2-1987, and it was the duty of the appellant to have been vigilant and to make inquiries about the fixation of the appeal. From the above circumstances, it is clear that the appellant as well as his counsel were negligent in pursuing the matter in the Court on one hand merely because the appellant had engaged a counsel, the appellant was not absolved of his duty of keeping in touch with his Advocate to know about the progress of his case. On the other hand if the learned counsel had not received part of his fees it was his duty to have either asked the appellant to pay the remaining fees or to have appeared in Court and made a statement requesting the Court to allow him to withdraw power. But in the present case the appellant as well as the learned counsel failed in their duty to pursue the appeal.
8. ' Mr. Muhammad Yousuf learned counsel appearing for the appellant has relied upon the following decisions: 1 Mst. Mariam Bai and another v. Mst. Mehrunnisa Bcgum 1985 SCMR 2064, wherein the High Court had dismissed the two restoration applications filed under Order XLI Rule 19 of the Code of Civil Procedure for re-admission of appeals earlier dismissed in default of appearance, the question of absence of the learned counsel appearing in the appeals was not contested before the High Court, and the High Court mainly proceeded on the basis that the petitioners remained absent without sufficient cause. Even no counter-affidavit was filed in reply to the affidavits filed by the petitioner testifying about their illness, it was observed by their Lordships of the Supreme Court that: "As a broad proposition of law, it may be stated that the expression "sufficient cause" as used in Order XLI, Rule 19 of the Code of Civil ' Procedure is not susceptible of an exact definition and no hard and fast rule can be laid down to cover all possible cases. The question must of necessity depend on the facts and circumstances of each case and lies within the discretion of the Court. But this discretion must be exercised on judicial principles. The main consideration which weighs with the Court is to find whether the non- appearance was intentional or the result of negligence, so that where such non-appearance is not intentional or negligent and the counsel or his client has made genuine efforts to be present at the hearing, a very strict view should not be taken. See Muhammad Haleem and others v. H.H.
9. Muhammad Naim and others PLD 1969 SC 270."
10. ' It was further observed that:- "Since the petitioners had engaged a counsel to appear and argue their appeals on their behalf, the question of their non-appearance on the date of hearing is to be considered in the context of these facts. The petitioners' presence on the date of hearing would not have contributed to the progress of the hearing fixed for that date. Their absence, therefore, could not be held to be intentional. In the circumstances having found no reason to question the cause by the learned counsel for the petitioners for his absence on the relevant date, the Court ought to have accepted the application and restored the appeals to file" and therefore, the learned counsel appearing for the other side also conceded and the appeals were allowed and the matters were restored to file.
11. ' With utmost respect the above decision is not applicable to the facts of the present case inasmuch as no sufficient cause has been shown for the nonappearance of the counsel. On the contrary it is stated by the appellant in his affidavit that he was informed by the Advocate that since he had not received the remaining part of his fees, he did not appear in the Court on the date of hearing, and therefore, the above decision is distinguishable and is not applicable to the facts of the present case.
2. Masud Zain v. Muhammad Tariq Ahmed Malik and 2 others PLD 1988 Kar. 54 wherein the applicant had engaged two counsel, one from the City and other from outside but none appeared on the date. It was observed that: "The absence of both the council must be sufficiently explained. Mere fact that one of the counsel was from another place could not absolve him from obligation of explaining his absence. Party, though could be made to suffer on account of a gross negligence, minor lapses were generally condoned." However, the application was restored by imposition of costs.
12. There is no cavil with the proposition enunciated by a Division Bench in the above case. But in the present case there was a gross negligence on the part of the appellant as well as his counsel inasmuch as not only they failed to appear in the Court but there is no explanation for the absence of the learned counsel. The affidavit filed by the appellant clearly shows that his counsel was aware of the date of hearing but he did not appear because he had not received the remaining part of his fees.
3. Volkart (Pakistan) Limited v. Cotton Trading Corporation of Pakistan Ltd. And 2 others, 1986 CLC 429, wherein the counsel appearing for the party was practising outside the place and the party was not served with notice and the suit was decreed ex parte as no appearance was made by the defendants. Therefore, an application under Order IX, Rule 13, C.P.C. Was moved but the some was dismissed for non-prosecution. The Defendants filed application and offered explanation that they had not received any notice from the Court. It was observed that: "Since the notice was served on the party and his Advocate, who came from outside, though the Advocate did appear in the High Court in other cases but did not care to make inquiries about fixation of the above case.. Party could not be made to suffer and therefore, the matter was restored to file subject to payment of Rs,1,000 as cost."
13. ' It was contended by Mr. Muhammad Yousuf learned counsel appearing for the appellant, that limitation for filing restoration application was 3 years as envisaged by Article 181 of the Limitation Act and not 30 days, and therefore, the application was in time. In this connection he has relied upon (1) Yousuf v. Fazal Karim 1983 CLC 2219, wherein it was held that: "The period of limitation for restoration of First Rent Appeal dismissed for non-apperance was 3 years as envisaged by Article 181 of the Limitation Act and not 30 days as envisaged by Article 168 of the Limitation Act."
14. ' On the other hand Mr. Khizar Askar Zaidi has relied upon the following decisions: (1) Muhammad Sharif Khan and 4 others v. Board of Revenue, West Pakistan, Lahore and others 1970 SCMR 76, wherein the petition for leave was barred by time and condonation was sought on the ground that the learned counsel engaged to appear in the Writ Petition in the High Court did not give to the petitioners any intimation of either the date of hearing fixed or of the result of the case. Their Lordships repelled the contention and it was observed that: "We are not prepared to accept that a client's responsibility ceases after he has briefed a counsel to appear on his behalf. It is his duty to keep in touch with his counsel and to find out the progress, of his matter. If he could not go personally, it is his duty to make proper arrangements for timely information to be conveyed to him by either the counsel or his clerk" and the petition was dismissed.
(2) In the case of Rafiq Ahmed Khawaja v. Abdul Haleem 1982 SCMR 1229, it was observed that: ' The appellant's counsel had appeared in the Court on the earlier date but he failed to appear on the day on which the matter was dismissed in default. It was contended that dismissal of the appeal for default was due to the negligence of the counsel and not due to any negligence on the part of the appellant."
(3) In the case of Zulfiqar Ali v. Lal Din and another 1974 SCMR 162, it was observed by their Lordships of the Supreme Court that: "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."
15. 4 Chiraghdin and 4 others v. Jannat Bibi and 6 others (1976 SCMR 399), wherein the counsel appearing for the petitioners and Advocate on record had fallen ill a day before the hearing of the matter but the Advocate-on-Record did not make any arrangement nor informed the Supreme Court about his illness. The petitioners were also absent. It was observed by their Lordships that:- "Since no affidavit was filed by the petitioners, the mere fact that the petitioners had briefed Advocate on record did not absolve them of their obligation to appear and to ensure that their case is properly conducted." and the petition was dismissed.
5. Muhammad Rahim and 16 others v. Mst. Begum Kaniz Fatima Hayat and 3 others (1986 CLC 178) wherein a restoration application for restoring a suit dismissed in default was dismissed, ano the appeal came up before a Division Bench of this Court, it was observed after considering number of authorities that:- "It has been repeatedly pointed out by the superior Courts in our country that it is the duty of a party to litigation to keep himself informed of the proceedings and progress of the case by keeping in touch with his counsel, and if the counsel is negligent it is he who should suffer. It was further observed that it is well-settled that in civil matters on expiry of the period of limitation va'uable right accrues to the other side which cannot be taken away except on making out a sufficient cause explaining delay of each day" and since the Court was not satisfied with regard to the explanation offered by the Counsel and the appellant, the appeal was dismissed.'
16. ' Adverting to the question of limitation, raised by Mr. Khizer Askar Zaidi, the following decisions were relied upon by him: "Where the appeal was dismissed for non-prosecution, an application for restoration of appeal had to be made within 30 days in accordance with the Article 168 of the Limitation Act."
17. ' However, in the above matter the restoration application was filed for the restoration of Civil Appeal under Civil Procedure Code, and not under Sindh Rented Premises Ordinance. In this connection it will be worthwhile to refer to the case of Yousuf v. Fazal Karim (1983 CLC 2219); wherein the identical question regarding limitation was involved and it was observed by Saeeduzzamman Siddiqui, J. Present Chief Justice that: "The Ordinance is admittedly a special as well as local law within the meaning of section 29 of the Act. It is not disputed that under the Ordinance, the period of limitation prescribed for filing of appeal before this Court is different from the period prescribed thereof, in the first Schedule to the Act. In these circumstances clause (a) of subsection (2) of Section 29 of the Act will be applicable and, therefore, Article 160 of the Act which prescribes the period for filing of an application for restoration of appeal dismissed for non-prosecution will not be attracted. In the absence of any specific Article in the Act being applicable to such application, the same should be filed within reasonable time which in my view should be equivalent to the period prescribed in residuary '
18. Article 181 of the Act, as three years."
19. ' In the above reported case, the case of Afroze Begum v. Y.M.C.A. (PLD 1979 SC 18) was relied upon.
20. In view of the above discussion, I am of the considered view that although the application is within time, the appellant and his counsel were responsible for gross negligence which is clear from the affidavit, filed by the appellant himself that his Advocate did not appear on the date of hearing, as according to him he did not receive the remaining part of his fees, which clearly shows that he was aware of the date of hearing. I, therefore, find no merits in the application and the same is accordingly dismissed.