NAZIM HUSSAIN SIDDIQUI, J.- This Revision is directed against the order dated 14th January, 1992, passed by the then learned IInd Additional District Judge, Karachi West, dismissing the appeal against the order dated 18-3- 1991 of learned IIIrd Senior Civil Judge, Karachi West, in Suit No. 1319/85, whereby the application for restoration of the suit was dismissed. The facts relevant for decision of this revision are as follows: -
2. Applicant Muhammad Khan had filed the suit against respondent Shabrati for declaration, possession, mesne profits, injunction, and cancellation of decree allegedly obtained by mis- representation in respect of the plot No.217, Sector 4-D, admeasuring 200 square yards, Orangi Town, Karachi. The case of the applicant is that he had occupied said plot and had constructed four rooms on it and that the entire area of said sector was not till then regularized. It is alleged that in April 1979 the respondent had filed two Rent Cases, bearing Nos. 2326/79 and 2327/79, against the applicant, alleging therein that he had let out a shop and a house constructed on said plot to the applicant under a tenancy agreement. The applicant filed written statements in both cases and explained the true facts, mentioning therein that the applicant was the owner of said plot and the respondent had no concern with it and that the latter wanted to grab his property on the basis of false documents. It is also the case of the applicant that thereafter the respondent filed the rent case No. 514/80 against his own servant Haji Muhammad Saeed claiming to be the owner of shop No.6 constructed on said plot and stating that said Haji Muhammad Saeed was his tenant and was a defaulter. The respondent in collusion with said Haji Muhammad Saeed succeeded in getting eviction order in his favour and by fraud and mis-representation got possession of said premises by evicting the applicant from it through execution proceeding, showing as if the possession over it was of said Haji Muhammad Saeed.
3. The applicant filed the suit in question for possession, declaration, mesne profits, injunction and cancellation of decree, which was obtained by misrepresention of facts. Said suit was dismissed for non-prosecution on 26-9-1989 and this fact came to his knowledge on 27-11-1989, when the respondent disclosed this fact in R.C. Nos. 221/85 and 222/85. The applicant, after making necessary enquiry came to know on 30-11-1989, that he had pursued a wrong case due to bona fide mistake and the actual suit was dismissed on 26-9-1989. According to the applicant, two suits having No. 1319/85 were fixed on 18-9-1989 before the trial Court and one of them was adjourned to 15.11.1989 and subsequently to 9-1- 1990, and the applicant, under wrong impression, pursued said case; as such did not attend his case which was adjourned from 18-9-1989 to 26-9-1989. On 2-12- 1989, he filed an application along with an application under Section 5 of the Limitation Act, for restoration of the suit which was dismissed by learned IIIrd Senior Civil Judge, Karachi by order dated 18-3-1991. The applicant, thereafter, preferred appeal being Civil Misc. Appeal No.1 of 1991, which was dismissed by Mrs. Qaiser Iqbal, the then learned IInd Additional District Judge, karachi West as per Order dated 14-1-1992. Above two orders have been impugned in this revision.
4. Mr. S.M Akhtar Rizvi, learned counsel for the applicant contended that both the Courts below have failed to appreciate the fact that absence of the applicant on 26-9-1989 was due to bona fide mistake and, under the circumstances, both the Courts should have ordered for restoration of the suit. Also, it has been argued that both the Courts below have failed to exercise discretion so vested in them. In support of above contentions, learned counsel for the applicant cited the case of
(1) Moulvi Abdul Qasim and others Vs. Haji Abdul Razzaq PLD 1957 Lahore 204 (2)Salamat Bibi and others Vs. Settlement & Rehabilitation Commissioner, Multan PLD 1966 S.C. 467 (3) Municipal Committee, Rawalpindi Vs. Raja Muhammad Sarwar Khan 1968 SGMR 817.
In Moulvi Abdul Qasim's Case, it was observed that mis-apprehension about date was 'sufficient cause' within the meaning of Order IX Rule, CPC. In the case of Salamat Bibi while dealing .With the phrase 'sufficient cause' the Hon'ble . Supreme Court observed as follows:- "Each case must be judged upon its merits and its peculiar circumstances. While it cannot be tolerated that the counsel should be remiss in the discharge of their duties and leave the Court waiting for them, it is equally desirable, and even necessary, that the case should be heard and decided on merits, and where the non-appearance was not intentional and the counsel or his client had made genuine efforts in taking reasonable precautions to be present at the hearing, a very strict view as to 'sufficient cause' should not put him out of the Court."
In Municipal Committee, Rawalpindi Case, date of hearing was wrongly noted by the counsel in his diary and this lapse on the part of the counsel was considered , sufficient cause for restoration of the appeal. The dictum laid down in Salamat \Bibi case was followed in this matter.
5. Coming back to the facts of the instant case, it is noted that learned Senior Civil Judge declined to exercise discretion in favour of the applicant on the sole ground that documentary evidence was not produced before him to establish that two suits having same number were fixed on that particular date. First Appellate Court though found factual assertion of the applicant as correct that on that particular date two suits having the same number were fixed, yet, resolved the issue infavour of the respondent on the ground that the other suits was assigned a new number and the anomaly had occurred due to negligence or remissness of learned counsel for the applicant.
6. The expression 'sufficient cause' is not capable of being confined to precise, identical, and invariable definition, nor any hard and fast rule can be propounded as to encompass all possible eventualities which may arise due to particular fact and circumstances of each case. Therefore, the parameter of each l case would primarily be its own facts, which would have to be taken into ^consideration for determining as to whether sufficient cause is shown or not.
7. To make a mistake about the date is not a lapse of category, which can outrightly be excluded from the scope of bona fide mistake. Such mistakes occur by mis-apprehension of the advocate and sometime by unintentional wrong communication by the clerk of the Court. In this case, the mistake was bona fide. It is established from record on that particular date two cases having same number were fixed. It being so, the possibility of noting downa wrong date could not be ruled out.
Under the circumstances, the two Courts below should have exercised discretion in favour of the applicant. Law favours adjudication on merits and this principle is to be followed unless there are practical difficulties which cannot be surmounted.
8. Mr. Imran Ahmad, learned counsel for the respondent strenuously argued that the application for restoration of the suit was filed by the applicant after 66 days of passing of the impugned order, and the case being covered by Article 163 of the Limitation Act, which provides the period of thirty days from the date of dismissal, the application was hopelessly time-barred; as such, the suit could not be restored. He also submitted that even the inherent jurisdiction cannot be invoked for setting aside the dismissal order where Article 163 of the Limitation Act applies. This contention has no force. By virtue of amendment brought by Ordinance X of 1980, the provisions of Section 5 of the Limitation Act, have been made applicable to application filed under Sub-rule (1) of Rule 9 of Order IX CPC. It being to so, the delay is condoned.
9. In consequence, the Revision is allowed with no order as to costs and the impugned orders are set aside and the suit is restored to its original position.
The case will now go back to learned IIIrd Senior Civil Judge, Karachi West for trial on merits.