1. ' On 30-6-1998, United Bank Limited (Appellant herein) filed the above F.R.A. Against the order of ejectment, dated 27-5-1998 passed by the Rent Controller No,4, Karachi South. The Appeal was filed by M/s. Nafees Siddiqui Law Associates as is apparent from the Vakalatnama available on'the record which is signed by a U.B.L. Officer and accepted by Mr. Nafees Siddiqui and Mr, Muhammad Isa Shaikh, Advocates.
2. ' On 5-8-1998, when the Appeal came up in Court for Katcha Peshi. Mr. A. Aziz Khan, Advocate, filed his Vakalatnama on behalf of the landlady (Respondent herein and also filed an Application under section 151, C.P.C., (C.M.A. No,1022 of 1998) requesting the Court that she be heard at the time of Katcha Peshi as according to her the averments made in the Appeal Memo. Regarding deposit/payment of rent in Court were contextually incorrect, ambiguous and misleading. A copy of such application was supplied to Mr. Isa Shaikh, who was appearing for the appellant. Mr. Shaikh stated that he had no objection if the Appeal was heard at an early date and by consent the hearing was adjourned to 7-8-1998. On 7-8-1998 Mr. Muhammad Akmal Wasim filed an undertaking on behalf of the appellant stating that he had superseded M/s. Nafees Siddiqui Law Associates and requested for adjournment to argue the case as he needed some time. For preparation. Respondent's Application (C.M.A. 1022 of 1998) to which no counter-affidavit has been filed by the appellant was allowed with the content of Mr. Wasim. Thereafter, on the request of Mr. Wasim the Katcha Peshi hearing was adjourned to 17-8-1998, On 17-8-1998, when the Appeal was again listed in Court for Katcha Peshi, it was taken up three times. The appellant, their counsels Mr. Nafees Siddiqui, Mr. M. Issa Shaikh and Mr. Akmal Wasim were called three times during the course of the day but none appeared in response to the calls at any time while Mr. A. Aziz Khan stood up in Court every time. The appeal was, accordingly, dismissed for non-prosecution.
3. ' On 16-9-1998, Mr. Akmal Wasim filed his power along with an application under Order 9, Rule 13 read with Order 41, Rule 19, C.P.C., (C.M.A. 1259 of 1998) for restoration of the appeal. On 22-9-1998, the Court issued notice of this application to the respondent. On 26-10-1998, both Mr. Akmal Wasim and Mr. A. Aziz Khan, Advocates for the parties were present and on the request of Mr. Wasim the matter was adjourned to a date in office. On 30-11-1998, Mr. Wasim requested for time to file an affidavit-inrejoinder which was allowed and the hearing was adjourned to 14-12-1998. On 14-12- 1998, Mr. Nafees Siddiqui, Advocate, appeared for the appellant and stated that Mr. Akmal Wasim was not in a position to argue the matter on account of his illness and that he had taken over the responsibility of the case and requested for time to file an affidavit-in-rejoinder and prepared his' arguments in respect of the application for restoration of the appeal. By consent the hearing was adjourned to 11-1-1999. On 11-1-1999, Mr. Muhammad Isa Shaikh appeared for the appellant and sought adjournment on the ground that Mr. Nafees Siddiqui was on general adjournment for 11th and 12th January, 1999. However, it was observed from the General Notice issued by the Superintendent, Roster Branch produced before the Court that Mr. Nafees Siddiqui had been granted general adjournment from 11-1-1999 to 12-1-1999 except in cases in which date had been given by the Court. The request of Mr. Muhammad Isa Shaikh was not found reasonable as the hearing had been adjourned by the Court on the request of Mr. Nafees Siddiqui. However, in the interest of justice the hearing of the application was adjourned to 14-1-1999 on payment of costs.
4. ' The reason stated by Mr. Akmal Wasim for restoration of the appeal in paras.3 and 4 of his affidavit is as follows: "(3) That I was not well between 15th August, 1998 up to 25th August, 1998, and was suffering from pancreatitis attack and had been directed by my Doctor for complete bed rest, and was unable to attend this Honourable Court between the above said period.
(4) That the non-appearance of the undersigned counsel was bona fide and was not deliberate."
5. ' The respondent filed her counter-affidavit to the restoration application on 8-10-1998 and vehemently opposed the ground taken by Mr. Wasim in his affidavit. In rebuttal Mr. Muhammad Isa Shaikh, Advocate. And not Mr. Akmal Wasim filed an affidavit-in-rejoinder on 13-1-1999 wherein in paragraphs 3 to 6 he submitted the following explanation: "(3) That Mr. Muhammad Akmal Wasim, Advocate, son of Justice (Retd.) Muhammad Haleem, is also one of the. Advocates, who used to work as one of the associates of Nafees Siddiqui Law Associates.
(4) That the above noted matter was assigned to Mr. Muhammad Akmal Wasim, Advocate by Mr. Nafees Siddiqui, Advocate, to prepare .Himself and exclusively to appear and act in the above on behalf of the appellant.
(5) That, however, since Mr. Akmal Wasim, Advocate had appeared before this Hon'ble Court for the first time on 7-8-1998 and made a verbal undertaking to file his Vakalatnania and appear before this Hon'ble Court on the next date, The Hon'ble Court was good enough to permit the same.
(6) That, however, Mr. Akmal Wasim is suffering from some serious disease mentioned by him in hi, affidavit as Such on 17-8-1998 when the above noted matter was fixed before this Hon'ble Court he could not appear before this Hon'ble Court. Further, since he had serious attack of the disease, he could not inform anybody also in office in the morning who could convey the message and may 'have filed the necessary application to this I Ion'ble Court. The result was that F.R.A. Was dismissed in non-prosecution."
6. ' Mr. Nafees Siddiqui, the learned counsel for the appellant submitted that the absence of Mr. Akmal. Wasim on 17-8-1998 when the appeal was dismissed was for sufficient cause as he was suffering from pancreatitis attack and had been advised complete bed rest due to which he could not attend the Court between 15th August, and 25th August, 1998. He explained that as Mr. Wasim had suffered from a serious attack of the disease he could not inform anybody in the office of M/s. Nafees Law Associates in the morning who could convey the message and file the necessary application for adjournment' in Court. He further submitted that the absence of the counsel was beyond his control and the client should not be allowed to suffer on account of the illness or mistake of counsel and that the matter should be decided on merits so that justice be done. In support of his contention he relied upon: 1990 SCMR 1025; 1989 SCMR 883; PLD 1986 Pesti., 81; 1988 CLC 654 and 1982 CLC 767.
7. ' Mr. A. Aziz Khan, learned counsel for the respondent vehemently opposed the appellant's application for restoration and contended as follows:
(i) The First Vakalatnama of M/s. Nafees Siddiqui Law Associates filed on 30-6-1998 has been signed by Mr. Nafees Siddiqui and Mr. Muhammad Isa Shaikh and the second Vakalatnama filed on 16-9-1998 by Mr. Akmal Wasim mentions the name of Mr. M. Akmal Wasim of M/s. Nafees Siddiqui Law Associates who was appointed to appear and act for the appellants in the matter. The first Vakalatnama in favour of Mr. Nafees Siddiqui and Mr. Muhammad Isa Shaikh had not been withdrawn or cancelled by the appellants at any time as required under Order 3, Rule 4(2), C.P.C., and, therefore, all the three counsel were Advocates for the appellants who were responsible for the conduct of the appeal. In support of his arguments he relied upon the judgments reported in: 1994 SCMR 1948; PLD 1981 Kar. 645; 1991 CLC Note 137; 1987 CLC 1208; and 1985 SCMR 1595.
(ii) The Statement of Mr. Akmal Wasim of superseding M/s. Nafees Law Associates was not correct as according to the Affidavit of Mr. Isa Shaikh, Mr. Wasim was a member of the Firm of M/s. Nafees Law Associates. The plea of restoration, therefore, ought not to be sustained because of contradictory statements made by Mr. Wasim and Mr. Shaikh.
(iii) The Rejoinder Affidavit filed by Mr. Isa Shaikh is not in accordance with law. It has not been filed by the person who had filed the Primary Affidavit. This has been done to fill the lacunas highlighted by the respondent which should not be allowed.
(iv) Mr. Nafees Siddiqui, Mr. Muhammad Isa Shaikh and Mr. Muhammad Akmal Wasim were appointed to appear and plead the case for the appellants, all the three appeared in the Appeal for the appellants on various dates and are severally responsible for the conduct of the appeal.
8. Each Advocate must explain his absence of 17-8-1998 when the appeal was dismissed which has not been done.
(v) It has been admitted by the appellant that Mr. Muhammad Akmal Wasim was a member of the Firm M/s. Nafees Siddiqui Law Associates. Therefore, every member of the Firm knew about the illness of Mr. Wasim from 15th August, 1998 which was prior to the . Date of dismissal. Further, Mr. Wasim's absence on 17-8-1998 is irrelevant as his power was not on the file.
(vi) The cases cited by the appellant's counsel are distinguishable from the circumstances of the present appeal which is a case of gross negligence and the application should be rejected.
9. ' In reply to the arguments of Mr. Khan, Mr. Siddiqui reiterated that the absence of Mr. Wasim on 17- 8-1998 was not intentional. It is a case of technical default of counsel. Mr. Siddiqui has been appearing regularly for the last three months and the client should not be allowed to suffer on account of illness and mistake of counsel and cited the following further cases in support of his submission: 1992 SCMR 1895, 1993 SCMR 1949 and 1990 SCMR 671.
10. ' I have heard the arguments advanced by Mr. Nafees Siddiqui, the learned counsel for the appellant in support of the application and the arguments of Mr. A. Aziz Khan; learned counsel for the respondent for dismissal of the same.
11. ' The Appeal was fixed in Court for Katcha Peshi on several dates. On 7-8-1998, Mr. Akmal Wassem filed a stamped undertaking on behalf of the appellants stating that he had superseded M/s. Nafees Siddiqui Law Associates and requested for adjournment for preparation to argue the case.
12. On his request and with consent of the respondent's counsel, Kathca Peshi hearing was adjourned to 17-8-1998. On the said date, the appeal was called three times when neither the appellant nor their counsel Mr. Nafees Siddiqui, Mr. Isa Shaikh or Mr. Akmal Waseem appeared. The appeal was accordingly dismissed for non-prosecution under Order 41, Rule 17, C.P.C. On 16-9-1998, Mr. Akmal Waseem filed an application under Order 9: Rule 13 read with Order 41, Rule 19, C.P.C. For restoration of the appeal. Under both the provisions mentioned in the application to set aside the dismissal order and restore the matter on file the appellant is required to prove to the satisfaction of the Court that he was prevented by sufficient cause from appearing in Court when the matter was called for hearing. The terms sufficient cause has been considered and interpreted by the Superior Courts in several judgments; However before considering whether the appellants in the present case were prevented by sufficient cause from appearing in Court, it could be appropriate to refer to Order 3, Rule 4, C.P.C., which reads as follows:-- "(4) Appointment of pleader:---(1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized by or under a power of attorney to make such appointment.
(2) Every such appointment shall be filed in Court and shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court on until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client."
13. ' According to the aforesaid rule no Advocate shall act for any party in any Court unless he has been appointed by a document in writing signed by such person which includes a Vakalatnama and all such appointment shall continue to be hi force until revoked by the person appointing him in accordance with law or until the Advocate dies or until the proceedings are ended.
14. ' Therefore, when an Advocate accepts an appointment to appear, act and plead for a person, he assures his client that he would prosecute or defend the matter as the case may be to the best of his ability and without any negligence on his part. He undertakes that he would act as a responsible Advocate, follow up and pursue the matter in Court diligently and prudently to protect the interests of his client.
15. ' In Ex-Hay. Mirza Mushtaq Baig v. General Court Martial. 1994 SCMR 1948, the Honourable Supreme Court while discussing the duty of an Advocate observed that "Even in cases where the papers have been taken away by the client, it is the duty of the Advocate to appear on the next date of hearing till such time he withdraws his power or it is cancelled according to rules by the client." In another case of Haji Abdul Hameed v. Mumtaz Ayub, 1985 SCMR 1595, where the plea taken in support of the application for readmission of the appeal was that the Advocate was unable to attend due to his illness and had no notice of the hearing in Court as he was not a member of High Court Bar Association and, therefore, did not receive the Cause List of the Cases before the High Court, the Honourable Supreme Court rejected the plea and approved the reasons of the High Court which were as follows: "These grounds are not enough to justify non-attendance of the counsel and/or his client. It is the duty of the counsel to see that proper steps are taken to seek adjournment if he falls ill. An application could be sent by the counsel for adjournment on the ground of ill-health and the party can also be sent to attend on the date of hearing and apply for adjournment if his counsel was unable to attend. If the counsel appears in a case in the High Court then it is not permissible for him to use the ground that he could not attend because he did not get the cause list because he is not a member of the High Court Bar Association. It is for the counsel to take proper steps to see that the case is properly attended to on every date of hearing and if he is unable to attend on the same date due to any unavoidable reason then proper request can be made to the Court for adjournment. The counsel cannot be allowed to succeed on the ground that non-prosecution of the matter was justified because the counsel was not a member of the High Court Bar Association and did not get the cause list. In any case in this case on 16-4-1984 Mr. Hashmat Ali Habib Advocate appeared before the Court and sought adjournment on the ground that he had sore throat and at his request the case was adjourned. Since no specific date was given, it is understood that the next date was to be given in office. Mr. Hashmat Ali Habib has admitted before me that in such case the next date comes normally after three weeks. In the instant case, the case again came up for hearing on 7-5-1984 which is exactly after three weeks. It was in the knowledge of the learned counsel that the case was likely to be fixed in the second week of May. He should have taken all precautionary measures to ascertain the actual date of hearing from whatever means he could. He could have sent his client or his clerk to the High Court to enquire about the date of hearing if he had no arrangement to receive the case list in the office."
16. Initially Mr. Nafees Siddiqui and Mr. Isa Shaikh of M/s. Nafees Siddiqui Law Associates were appointed by the Appellant as their Advocates. On 7-8-1998, Mr. Akmal Waseem undertook to file power on behalf of the Appellant and filed his Vakalatnama as member of Nafees Siddiqui Law Associates on 18-9-1998 after the Appeal had already been dismissed on 17-8-1999. The power of Mr. Akmal Waseem does not state that the power of Mr. Nafees Siddiqui or Mr. Isa Shaikh had been revoked. Consequently, the Vakalatnama given by the appellant in favour ,,.Of Mr. Nafees Siddiqui and Mr. Isa Shaikh continued to be in force. Under the law, they continued to be responsible for prosecuting the appeal and should have appeared in Court on all dates of hearing to prosecute the same in terms of their appointment. They neglected and failed to perform their duty to their clients by not appearing in Court when the appeal was listed for Katcha Peshi hearing.
17. On 7-8-1998, Mr. Waseem did not file any Vakalatnama but only filed an undertaking to file power for the appellant. An undertaking to file power given by an Advocate does not mean that he is the duly appointed Advocate of the party as envisaged by Order III, Rule 4, C.P.C. It is quite possible that the client may change his mind or for some other reason the Advocate may decline to appear for the said client. In order to hold a person responsible as an advocate, it is necessary that the appointment be made in accordance with the procedure provided, therefor, by law i,e,, under Order III, Rule 4, C.P.C. The Vakalatnama of Mr. Nafees Siddiqui and Mr. Isa Shaikh as envisaged in the aforesaid Rule was on the record and there was no Vakalatnama of Mr. Akmal Waseem in the appeal. Consequently, it was the duty of M/s. Nafees Siddiqui and Isa Shaikh to appear in Court and pursue the appeal on 7-8-1998, 17-8-1998 and on every other subsequent date of hearing of the appeal. Mr. Siddiqu! And Mr. Shaikh neglected and/or failed to do so.
18. ' Further, in the present case, Mr. Akmal Waseem filed his affidavit to show that he was suffering from pancreatitis from 15th August to 25th August, 1998 and had been advised complete rest by his doctor as a result of which he could not attend the Court during this period. This affidavit cannot be considered as an explanation of sufficient cause for the absence of the Advocate for the appellant because there was no Vakalatnama of Mr. Akmal Waseem on the record on 17-8-1998 when the appeal was dismissed. Even assuming for the sake of argument that the undertaking could be treated as a Vakalatnama, the other two Advocates namely Mr. Nafees Siddiqui and Mr. Isa Shaikh have not explained their absence from the Court for sufficient cause on the crucial date. Every Advocate, who files his power in any matter must show sufficient cause which prevented him from appearing on the crucial date. No such sufficient cause has been shown by either of the two Advocates whose Vakalatnama is on the record. In Kamal Din and others v. Nazir Ahmad. 1987 CLC 1208, where two Advocates had been appointed by a party, an argument was advanced that the power of the first Advocate was superseded when the second Advocate was appointed. While rejecting the argument the Division Bench of the Lahore High Court observed as follows: "Once a counsel is engaged, his authority cannot be revoked except with the permission of the Court. It is not the applicant's case that they had by an overt application signified their intent to revoke authority of the counsel and, therefore, statement made by him on their behalf was quite efficacious. Indeed, till then no Vakalatnama on behalf of the new counsel was presented and even if it were so, the authority of the superseded counsel was not ipso facto recalled." (CLC 1987 page 1209).
19. ' Again in M.A. Latif Faruuqi v. National Bank of Pakistan, PLD 1981 Karachi 645 at 648 while discussing duties of Advocates in cases where more than one Advocates are appointed by a party the Division Bench observed as follows:--- "When more than one Advocates appear in a case for a party, each Advocate has to explain his absence satisfactorily."
20. ' Similarly, in Nizam Din v. Fateh Muhammad and others, (1991 CLC 1542) where on the date fixed for hearing of the appeal neither the appellant nor his counsel who had originally filed the appeal and whose name was duly printed in the cause list appeared in Court as a consequence of which the appeal was dismissed, an application under Order 41, Rules 17 and 19 was filed for readmission of the appeal. The application was rejected by the Division Bench of the Lahore High Court with the following observation: "(5) A perusal of the record shows that in addition to Mr. Hussain Muhammad Naqvi, Advocate who had originally filed the appeal, the petitioner had also engaged Ch. Inayatullah, Advocate who had been entering appearance on different dates of hearing." In the power of attorney filed by the learned counsel on behalf of the petitioner, there is no such restriction that he has been engaged only for the purpose of filing of a miscellaneous application. As is evident from the power of attorney Ch. Inayatullah, Advocate had been engaged as a counsel in the appeal itself.
(6) Be that as it may, it is evident from the order, dated 26-5-1981 that the name of Mr. Hussain Muhammad Naqvi, Advocate, who had originally filed the appeal was duly shown in the cause list, but he did not enter appearance. There is nothing on record to support the assertion of the petitioner that the cause list had not reached Mr. Hussain Muhammad Naqvi, Advocate. There is hardly any justification for re-admitting the appeal." (pages 1543-1544).
21. ' In, the instant case, neither Mr. Nafees Siddiqui, Advocate nor Mr. M. Isa Shaikh, Advocate, whose Vakalatnama is on the file have filed their affidavits individually to prove that both of them were prevented by sufficient cause from appearing when the appeal was called in Court for hearing three times on 17-8-1998.
22. ' It is further pertinent to note that on 7-8-1998 Mr. Wasim made a statement in Court that he had superseded M/s. Nafees Siddiqui Law Associates. In the affidavit in support of the application for restoration filed by him he stated that he could not attend Court from 15th August to 25th August, 1998 as he was suffering from Pancreatis attack and had been advised complete bed rest. The respondent in the counter affidavit challenged the veracity of the statement made by Mr. Wasim in his affidavit. Mr. Wasim did not file an affidavit-in-rejoinder to deny the assertions made by respondent. Instead Mr. M. Isa Shaikh filed a rejoinder in which he did not controvert the statement of the respondent but stated that the matter had been assigned to Mr. Wasim to exclusively appear and act in the matter on behalf of the appellant. The rejoinder should have been filed by Mr. Wasim to place to correct position on record. The position taken by Mr. Wasim and Mr. Isa Shaikh are not complementary and do not inspire confidence. In any case, according to the affidavit of Mr. Issa Shaikh, Mr. Wasim used to work as one of the associates of Nafees Siddiqui Law Associates and consequently their office staff including Mr. Nafees Siddiqui and Mr. Issa Shaikh must have noted the absence of Mr. Wasim on 15th and 16th of August, 1998 when he did not attend the office. As prudent lawyers they should have immediately contacted Mr. Wasim to find out the reason of his absence and taken appropriate steps to ensure that the matters entrusted to Mr. Wasim do not go by default. Both Mr. Nafees Siddiqui and Mr. Issa Shaikh failed to do so. Further, the appeal was listed in the Daily Cause List of 17-8-1998 which was received by their office. They should have checked the cause list to ascertain whether any matter assigned to Mr. Wasim was listed for hearing. They again failed to do so. Moreover, when the appeal was adjourned from 7-8- 1998 to 17-8-1998 on the request of Mr. Wasim, it must have been noted in the diary and in the office record by the Court Clerk of M/s. Nafees Siddiqui Law Associates that the case had been adjourned to 17-8-1998. It was, therefore, in the knowledge of Mr. Nafees Siddiqui and Mr. Isa Shaikh that the matter was fixed in Court for Katcha Peshi on 17-8-1998. The aforesaid two Advocates again did not take appropriate steps for Court attendance and prosecution of he appeal on 17-8- 1998 to which date the appeal had been adjourned. This was also gross negligence on the part of the lawyers of v/s. Nafees Siddiqui Law Associates. '
23. ' None of the cases cited by Mr. Hafees Siddiqui, the learned counsel for the appellant in support his application are applicable to the facts and circumstances of his case and are distinguishable. In Mst. Zubaida Mumtaz Begum v. Mst. Ikram Jan, 990 SCMR 1025, the appeal was dismissed or want of prosecution and on that very date le counsel filed an application for restoration supported by an affidavit wherein he stated that the appeal had been listed in the cause list of that day at Serial No,19 and as the matter 'as fairly low in the list he went to attend to is other cases before other Courts and when returned to the Court of the District Judge 10-30 a.m. He found that the Appeal had taken kept in Intezar whereupon he to the Court again to attend two other matters in another Court. However, when he returned at 11-30 a.m. He found that the appeal had been dismissed in default. The application for restoration was allowed and the appeal was restored to file. The Supreme Court while dismissing the petition against restoration observed that the counsel had explained in detail the reasons for his absence from the Court at the time when the appeal was called for hearing and that the application for restoration had been filed on the very day the appeal was dismissed. This judgment is of no help to the appellant as more than one counsel were appearing in the appeal and the application for restoration was filed on the 30th day from the date of dismissal.
24. ' The case of Mst. Begum and others v. Mst. Begum Kaniz Fatima Hayat and others, 1989 SCMR 883 is also not applicable to the facts and circumstances of this case. In this case the application for restoration was allowed because the Attorney of the appellants and their Advocate had explained in detail the circumstances which prevented them from appearing before the Court on the date of hearing. The details established that there was no negligence or carelessness on the part of the party and the counsel and accordingly relief was granted. Additionally, interest of minors was also involved in this case. In the present case, neither the appellant nor their Advocates have shown the various steps they took to prosecute the appeal prudently and that they had not been negligent or careless in any way in their duties.
25. ' In the case of Water and Power Development Authority v. Muhammad Hayat Khan and 7 others, PLD 1986 Peshawar 81, the learned Division Bench of the Peshawar High Court observed that inadequacy of sufficient cause should not stand in the way of justice on merits as the objective of the Court is to do full and substantial justice in the case after allowing due opportunity of hearing to the parties. There is no cavil against the above proposition of law enunciated by the Hon'ble High Court of Peshawar but I am afraid this principle cannot be applied to the circumstances of the present case in view of the pronouncements of the Hon'ble Supreme Court in cases relating to gross negligence of the counsel referred to above. The case of M/s. Raheem Steel Re-Rolling Mills and 4 others v. M/s. Karim Aziz Industries (Pvt.) Ltd. 1988 CLC 654 and the case of Mst. Qamar Sultana v. Abdul Hussain and another, 1982 CLC 767, are judgments of Single Judge, which cannot be applied for the same reason. The case of Inamur Rehtnan Gilani v. Jalal Din, 1992 SCMR 1895 deals with the case where the petitioner had himself appeared in the absence of the counsel and submitted a written request for adjournment on the ground that the counsel was appearing before the Supreme Court at Rawalpindi. Such is not the position in the present case. The case of Qazi Muhammad Tariq v. Hasin Jehan, 1993 SCMR 1949 is also not applicable as the said case deals with the dismissal of the suit on a day which was fixed for hearing of the application for interim injunction. The case of Moulvi Abdul Ghulam v. Mir Muhammad Amin and others, 1990 SCMR 671 deals with the case where neither the amended plaint had been filed nor the heirs of the deceased had been served and yet an ex parte decree was passed. The principle laid down in this case is accordingly not applicable to the present case.
26. In view of the above discussion, I am of the opinion that none of the Advocate who filed their Vakalatnama on behalf of the appellant have been able to establish that they had acted prudently and without negligence and were prevented by sufficient cause from appearing in Court when the appeal was called for hearing three times on 17-8-1998 to justify the Application for re-admission of the appeal dismissed for default. Consequently, the Application under Order 9, Rule 13 read with Order 41, Rule 19, C.P.C., is hereby dismissed with costs of Rs,5,000.