' KAMAL MANSUR ALAM, J.---This appeal under section 22 of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993, (hereinafter to be referred as the Act) is directed against the order, dated 23-1-1999 of the Cooperatives Judge, whereby he dismissed appellant's application for setting aside ex parte order, dated 13-1-1997 dismissing appellant's application for leave to appeal to appear and defend the Petition No,19-C, of 1996 filed by the respondent under section 7(v) of the Act, for recovery of a sum of Rs,20,44,429 together with profit at the contractual rate of 10 per cent.
Plus 5 per cent. Liquidation charges till the date of payment and allowed the said petition.
2. The appellant, a Private Limited Company, was engaged in the business of construction and was maintaining an account with the National Industrial Cooperative Bank Limited, incorporated under the Cooperative Societies Act, 1925 (hereinafter referred to as the NICFC) which was declared as undesirable cooperative society and the respondent Board was appointed as liquidator thereof.
The respondent filed a petition under section 7(v) of the Act, before the Cooperatives Judge for recovery of Rs,20,44,4429 together with profit at the contractual rate of 18 per cent. 5 per cent liquidation charges till the date of payment from the appellant. In the said petition the appellant moved an application on 2-12-1996 for leave to defend raising several objections to the respondent's petition 'including that no amount was due from the appellant to the respondent and on the contrary in its account maintained with the NICFC there was a credit balance of Rs,7,41,985.
1995 which was payable by the respondent to the appellant and that in spite of appellant's requests the respondent did not bother to discuss this issue with them. The execution and correctness of the documents filed by the respondent in support of the petition was also denied.
The hearing of the appellant's said application was fixed on 13-1-1997 at Islamabad and it is alleged that on that date the Chairman of the appellant who is the President of the Pakistan Peoples Party Gujrat had to be present at Gujrat in connection with an important public meeting, and therefore, he informed his counsel Mr. Ahmed Rauf about his engagement and made available to him air ticket to enable, him appear in Court. However, it is alleged that Mr. Ahmed Rauf had to leave for Umra on 13-1-1997, and therefore, he requested Mr. Muhammad Bilal, Senior Advocate Supreme Court, to appear in Court on 13-1-1997 and seek, adjournment on his behalf. In his personal affidavit filed by Mr. Muhammad Bilal, Senior Advocate Supreme Court, in support of appellant's application for the setting aside of the ex parte order he has acknowledged the receipt of the message for appearance on 13-1-1997 and has stated that the date was also noted in his diary, but due to the oversight of his office staff it was not conveyed to him, and therefore, he could not appear before the learned Cooperatives Judge on 13-1-1997 and consequently when the matter came up before the learned Court. Appellant's application for leave to defend was dismissed and the respondent was allowed to recover the said sum prayed. On coming to know of the ex parte order the appellant filed application for setting aside the order, which application was dismissed by order, dated 23-1-1999 now impugned in this appeal.
3. Mr. Nasir Saeed Sheikh, learned Advocate Supreme Court appearing on behalf of the respondent has opposed the appeal on the ground that no reasonable ground had been made out for the setting aside of the ex parte order. It is submitted that absence of the counsel on the date of hearing of the application due to negligence of his staff could be no ground to have the ex pane order set aside as it was primarily the duty of the appellant to pursue its case properly and the mere fact that it had engaged a counsel would not absolve it of its responsibility. Reliance was placed on the cases of Rafiq Ahmed Khawaja v. Abdul Haleem (1982 SCM R 1229) and Chiragh Din and four others v. Mst. Jannat Bibi and six others (1976 SCM R 399). The first was a case where the respondent therein filed a petition before Rent Controller for the eviction of the appellant-tenant and as, on the date the petition was fixed in Court the appellant and his counsel remained absent, the Rent Controller proceeded ex parte and after recording respondent's evidence and hearing arguments directe, the ejectment of the appellant-tenant, who then filed an application under Order IX, rule 9, C.P.C. Praying for the setting aside of the ex parte order on the ground that he had no knowledge of the date of hearing and that his Advocate having joined Government service could not appear in Court. This application was dismissed by the Rent Controller, against which he filed an appeal, which, too, was dismissed by the Additional District Judge, Karachi, so also the second appeal filed in the High Court of Sindh. The appellant then approached this Court. It was pleaded that the appellant should not be made to suffer on account of the negligence of his counsel who was under a legal duty to appear and defend or at least to inform the appellant of his inability to so appear in the Court. Repelling the contention, it has been observed:-- "As pointed out earlier, the High Court on a thorough re-examination of the explanation furnished by the appellant in support of his non-appearance, has come to the conclusion that the appellant himself was negligent in not keeping in touch with his counsel, when circumstances indicate that he was available in Karachi. Nothing has been pointed out to us to disagree with this conclusion of the learned single Judge."
' In the second case the petition for leave to appeal was dismissed for non-prosecution whereupon application for restoration was moved seeking restoration on the ground that on the date fixed for hearing of the petition the counsel appearing for the petitioner was taken ill and a day earlier the Advocate-on-Record had too fallen sick. The plea was rejected holding that:- "Learned counsel and Advocate-on-Record for the petitioners have both filed their affidavit to say that they were suddenly taken ill on 28-6-1974 and 27-6-1974 respectively and, therefore, could not appear. There is no reason to doubt that statement. It, however, does not, absolve the Advocate- on-Record much less the petitioners of their obligation to appear. The Advocate-on-Record according to his affidavit fell ill a date earlier but he made no arrangement to inform the Court in time. No affidavit is filed by the petitioner. To have briefed Advocate-on-Record did not absolve them of their obligation to appear and to ensure that their case is properly conducted."
4. The instant case is clearly distinguishable from the two cases referred to by the respondent's counsel. Here the appellant has given a reasonable explanation for his absence on 13-1-1997 when its application for leave to defend came up for hearing in Court. The absence of his counsel on that date has also been reasonably explained. The Chairman of the appellant being busy in an important meeting had requested his counsel and had also sent an air ticket to him to appear in Court on 13-1-1997. However, as the said counsel had to proceed for Umra on that date, he requested Mr. Muhammad Bilal, Senior Advocate Supreme Court, to appear on his behalf and seek adjournment. In his affidavit. Mr. Muhammad Bilal has admitted having received such request and the date having also been noted down in the diary. He has attributed his absence from the Court on that date to the inadvertent slip on the part of his Office. It would, thus, seem that the appellant was not negligent in pursuing the matter and in fact had taken appropriate steps so as to ensure the presence of its counsel in Court on the due date.
5. In the circumstances of this case we are, therefore, of the view that reasonable explanation has been provided for the absence of the appellant and his counsel on 13-1-1997. Accordingly, subject to the payment of Rs,5,000 as costs by the appellant to the learned counsel for the respondent, we allow this appeal, set aside the impugned order, dated 23-1-1999, whereby appellant's application for the setting aside of the ex parte order, dated 13-1-1997 was dismissed, allow the said application and consequently set aside the said ex parte order, dated 13-1-1997 and remand the case to the Cooperatives Judge for proceedings therewith from the stage at which it was when the ex parte was passed.
6. Above are the reasons for our short order of even date whereby the appeal was disposed of.