' NAIMUDDIN, J.-This is an application under Order IX, rule 9 read with section 151, C. P. C. Made on behalf of petitioners praying for restoration of the petition, which was dismissed on 10-1-1975, for non-prosecution by the following order :- "10-1-1975. Petitioner and his Advocate called absent. The petition was admitted as early as 13th April 1972 and Mr. Abdul Asia Shaikh says that, since then, the petitioner has neither paid the costs nor supplied the annexures. In view of this conduct, the petition is dismissed for non-prosecution."
2. The cause shown for the restoretion of the application is that the Advocate for the petitioner does not own his own transport and depends upon the public transport, which he got on the day the case was fixed in Court after great hardship on his way to the Court and that the statement made by respondent No, 5 in Court about the non-payment of process fee and non-supply of annexures was not correct on the face of the record of the petition. The absence of the petitioners, as explained in the affidavit in support of application, was for the reasons that the petitioners reside outside Karachi in Thatta District and because their attendance was not deemed essential for the purpose for which the case was put up, they were not informed of the date of hearing.
3. The respondent in reply to the affidavit filed counter-affidavit stating that the above matter was called out about 9-15 a.m. It is asserted that no cogent and sufficient reasons have been given by the petitioners for restoration of the petition and that the petitioners were guilty of not pursuing the petition diligently. It is also asserted that the application for restoration was belated as the same was filed on 7-2-1975 i,e,28 days after the date of order and is not bona fide and is the result of an afterthought. On 1-10-1975, when the application came up for consideration of the Court it was opposed by Mr. Abdul Aziz, Advocate as he did not accept the assertion of Mr. Muhammad Ramzan that he was slightly late because he could not get taxi in time and thererefore, the case was adjourned at his request to enable Mr. Muhammad Ramzan to file affidavit-in-rejoinder in order to support his assertion. However, Mr. Muhammad Ramzan has filed an affidavit-in-rejoinder of Mr. Ahrned Ali, a Senior Advocate of this Court, who stated therein that he had attended the Court in connection with L. P. A. No, 138 of 1966, which was fixed before the same Bench before which the present petition was fixed and the same was dismissed in default in his presence and when he had come out of the Court after his case was adjourned, he met Mr. Muhammad Ramzan on the ground floor in the verandah near the main gate and informed him that his case was called out and he was marked absent and thereupon Mr. Muhammad Ramzan told him that he was going to attend his case.
4. We have heard the learned counsel for the petitioners and Mr. Abdul Aziz and the learned Advocate-General. Mr. Abdul Aziz has today also strenuously opposed the application for restoration of the petition. Mr. Abdul Aziz has opposed the grant of the application for restoration of the petition on the following grounds viz. :
(1) The petitioners had not been diligently pursuing their case as they had failed to pay the process fee and supply the annexures to the petition.
(2) The application was not bona fide as the same was filed after 28 days of the order of dismissal for non-prosecution.
(3) That no sufficient cause has been made for restoration of the petition.
5. Therefore, the first point for consideration is whether the petitioners were pursuing their case diligently or not and whether there was any ground for placing the case before the Court for orders for want of prosecution. A perusal of the diary sheet dated 13-9-1972, shows that the respondents Nos. 1, 4 and 5 were already served and that the fresh process to respondents Nos. 2 and 3 was not issued due to rush of work. Therefore, the fresh process was ordered to be issued by the Additional Registrar to respondents Nos. 2 and 3 for 18-10-1972. Then there is an endorsement on the diary sheets 'A', 'B' and photostat copies of annexures supplied today. Below the initial the date given is 11-11 without mention of the year. Thereafter, the order passed_ by the Additional Registrar on 4-12 reads : "Annexures supplied by the Advocate for the petitioner, three photostat copies are unreadable, other annexures are not supplied by the Advocate for the petitioner. Call up in Court for orders on 10-1-1975."
' After the date 4-12 the year is again not mentioned.
' On 10-1-1975, the case was placed before the Court for orders with the following office endorsement, "as costs not paid nor Annexures supplied for respondents." It was asserted by Mr. Abdul Aziz before the Court, as the order dated 10-1-1975 would show, that the petitioners neither had paid the costs nor supplied Annexures. It was under these circumstances the order dated 10-1- 1975, which has been reproduced hereinbefore, was passed.
5. However, the diary sheet nowhere mentions that the costs were not paid. Even the order of the Additional Registrar dated 4-12 does not mention that the costs were not paid. Therefore, it is not at all difficult to conclude that the case was unduly placed before the Court for orders for non- payment of costs. As regards the non-supply of annexures, the Additional Registrar while passing the order dated 4-12 did not take into consideration the endorsement on the diary sheet dated 11-11 which shows that `A', `B' and photo copies of Annexures were supplied on that day. Therefore, his order dated 10-1-1975 again wrongly stated that Annexures were not supplied by the Advocate for the petitioners. As to the three photo copies, which according to the order of the Additional Registrar were unreadable, the office should not have either accepted the same or should have issued notice to the Advocate for the petitioners requiring him to supply readable copies and as such the case would not have been at all put up in Court for orders, unless the petitioners had failed to supply the same after due notice. Strangely enough no year is mentioned after the date 11-11 or 4-12. These dates could relate either to the year 1972 or 1974 or the date 11-11 to the year 1972 and 4-12 to 1974. This means that no diary sheet was maintained at least between 11-11-1972 and 4- 12-1974 or after 4-12-1972. Mr. Abdul Aziz who was appearing for self and as counsel for respondent No, 4, to say the least, was not right when he asserted before the Court on 10-1-1975 that the costs were not paid and the Annexures were not supplied since 13th of April 1972 when the petition was admitted to regular hearing. Therefore, the contention of the respondents Nos. 4 and 5 that the petitioners were not diligently pursuing the case is not borne out by the record before us and we do reject the same. We are, therefore, clearly of the opinion that the case was wrongly placed on 10-1- i975 for orders for want of prosecution and dismissed on this ground.
6. Regarding the ground that the application for restoration was belated, we think, in the circumstances of this case, there was bound to be some delay as the Advocate for petitioners was not only required to explain the cause of his non-appearance at the time when the case was called in Court but also the reason for non-payment of costs and non-supply of Annexures to the petitioners. This could not have been possible for the Advocate to do then and there in Court when he attended the Court after some time on 10-1-1975, for he must have come to know the fact that this case was listed for non-prosecution only in the evening of 9th January 1975 when he must have received the Causes List and he naturally had to make necessary enquiries and verify the correctness of the office note. We are cf the opinion that delay in filing application for restoration, in these circumstances, does not show any lack of bona fide on the part of the Advocate for the petitioners and is not of any consequence so long as the application was made within the period of limitation prescribed under the Limitation Act.
7. Coming to the question whether the cause shown is sufficient or not, Mr. Abdul Aziz submitted that if the Advocate for the petitioners could not get taxi to reach the Court in time it was due to sheer negligence. He relied in support of his contention that not obtaining a carriage in time is not a sufficient cause, on a decision given in the case of Issur Sing v. Udhavdas and others (1), by a Division Bench of Sind Chief Court, but the view taken in this case proceeds on the peculiar facts thereof and there could be no quarrel with the proposition as stated therein that the party who deliberately takes risk of not obtaining carriage in time to be present in Court can hardly be allowed to urge his own laxity as sufficient cause for his absence. But the pertinent question is whether a taxi or other conveyance was available to the learned Advocate and whether the Advocate for the petitioners took any deliberate risk in not obtaining a taxi in time. Sometimes as the daily experience shows, it is possible that a person may not get a taxi for hours even if he leaves his home early in the morning to reach Court sufficiently in time or the conveyance may break down on the way and he may not reach Court in time on account thereof. Though precedents are not of much help in considering the sufficiency of cause shown for non- appearance in a particular case as in each case the same will depend on the peculiar facts of that case. However, we have noticed numerous decisions of various High Courts in the sub-continent {{FOOT NOTE}}
(I) AIR 1921 Sind 55 {{FOOT NOTE}} ' wherein arriving late in Court due to missing a train or bus or late arrival of train or non-availability of a conveyance or bus or tonga to reach the Court in time or late arrival due to accident was considered to be sufficient cause to restore a for default in appearance or to set aside an ex parte decree, particularly when the case was dismissed or an ex parte decree was passed for non- appearance in early hours of the day. Reference can be had to the cases of Arunachala v.
Subramaniah (1), Anrup Singh v. Mst. Rupa Kanwar and others (2), Chhotalal v. Ambalal (3), Sohrabii v. Ramjilal (4), Shib Sahai v. Tika (5), Amiji Bhayan v. Akram All (6) and 1954 Madh. Pra. L J 1079. We may state that we are aware of the acute shortage of transport in big cities particularly in Karachi these days. This is why this Court is always reluctant to dismiss a case or pass an order or decree in default of appearance in the early Court hours, unless there is some special reason for doing so. This petition was listed at Serial No, 2 of the list of causes of the day and according to respondent No, 4 herself it was dismissed at 9-15 a.m. We are sure the case would not have been dismissed in early Court hours and would have been kept aside for some time, had it not been put up for want of prosecution for non-payment of costs and non-supply of annexures to the petition in spite of lapse of several years from the dare of admission of the petition, and to quote the words of the Division Bench, "In view of this conduct, the petition is dismissed for non-prosecution".
8. We may state that Mr. Abdul Aziz also questioned the statement es the Advocate for the petitioner that he had attended the Court on 10-1-1975 after the dismissal of the petition and urged the same be not accepted as correct. But the statement of Mr. Muhammad Ramzan, Advocate is on oath and is supported by another statement on oath by a very senior Advocate of this Court. On the part of the contesting respondents there is a general denial and they brought no contrary evidence on record. Therefore, we have no hesitation whatsoever in believing and accepting the statement of Mr. Muhammad Ramzan. Another objection of Mr. Abdul, Aziz was that petitioners did not explain their absence from the Court on 10-1-1975 and even if it is found that the Advocate for the petitioners has shown sufficient cause for his absence from the Court the petitioners have not shown any cause whatsoever, for their absence. We think that the objection is not well founded.
The petitioners need not have been present in Court on 10-1-1975, when they were represented by an Advocate and when their presence on 10-1-1975 was not at all required or necessary.. Indeed, they could not have been present as they had no notice of the date of hearing. They reside in Thatta District and their local Advocate stated that he did not deem it necessary to inform them and in or opinion rightly so, for he never intended to remain absent from the Court on the date and indeed he would have explained the alleged want of prosecution.
9. We are, therefore, of the opinion that sufficient cause has been shown for non-appearance of the Advocate for the petitioners on 10-1-1975 and there was no want of prosecution of the petition on the part of the petitioners. {{FOOT NOTE}}
(1) (1923) 46 Mad. 60 (2) AIR 1925 All. 601
(3) (1925) 27 B L R 685 (4) (1924) 26 B L R 321
(5) AIR 1942 Oudh 350 (6) AIR 1951 Assam 13 {{FOOT NOTE}}
10. Normally, we would have compensated the contesting respondents by according costs to them but in this case we have found that the case was wrongly put up in Court for orders for want of prosecution, though there was none on the part of the petitioners and Mr. Abdul Aziz had unduly supported the wrong note of the office. Therefore, it is not a case in which costs should be awarded.
11. Accordingly, we set aside the order dated 10-1-1975 and restore the petition.