' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the order of the High Court, dated 9-10-1999, whereby the revision petition filed by Muhammad Sharif and others was accepted and the cross-revision petition filed by the appellants, herein, was dismissed.
2. The brief facts of the case are that a suit was instituted by the appellants, herein, for recovery of damages to the tune of Rs,51,93,600 on various grounds. The case was fixed for recording the statements of the parties on 8-1-1999 when nobody appeared on behalf of the appellants, herein, and the suit was dismissed in default. An application for the restoration of the suit was filed on 11-1- 1999 which was accepted and the suit was restored by the District Judge. Consequently, a revision petition was filed by the respondents before the High Court challenging the order of restoration passed by the District Judge. The revisoin petition was accepted by the High Court and the matter was remanded to the District Judge to decide the same afresh according to law. The District Judge after hearing the parties in the light of the observations made by the High Court, restored the suit filed by the appellants, herein, observing that although no 'sufficient cause" has been shown for the restoration of the suit yet the plaintiffs-appellants could not be penalised for the negligence of their counsel. Again a revision petition was filed in the High Court by the respondents against the order of restoration passed by the District Judge which was accepted by the High Court observing that as the 'sufficient cause' for making default was not shown, the order of restoration of the suit was not sustainable. The cross revision petition which was filed by the appellants, herein, challenging the findings of the District Judge that no 'sufficient cause' was established, was dismissed by the High Court observing that as the revision petition filed by the opposite-party had been accepted and even otherwise it was not necessary for the appellants to file revision petition because the order of the District Judge was in their favour.
3. Mr. M. Tabassum Aftab Alvi, Advocate, the learned counsel for the appellants, has contended that the High Court has committed an error in setting aside the order of restoration passed by the District Judge on the ground that no 'sufficient cause' was alleged or proved by them for the absence of their counsel. He has contended that an affidavit was filed on behalf of the counsel for the appellants on 13-5-1999, wherein it has been deposed that the suit was fixed for hearing on 8-1- 1999 but one day prior he had gone to Rawalpindi due to some exigency and, thus, could not appear in the case. The learned counsel has contended that in presence of the aforesaid affidavit, it cannot be said that 'sufficient cause' was not shown by the counsel for the plaintiffs-appellants for his non-appearance on 8-1-1999, when the suit was dismissed in default. The learned counsel has also argued that the High Court was also not correct in holding that the District Judge was not legally competent to restore the suit in exercise of his inherent powers which are available to him under section 151, C.P.C. He has argued that even if no 'sufficient cause' was established, the trial Court was legally competent to restore the suit under its inherent powers for the ends of justice.
The learned counsel has also submitted that the cross-revision petition filed by the appellants, herein, in the High Court was not considered properly and was dismissed with the aforesaid observations. He has contended that the High Court did not apply its mind to the factum of 'sufficient cause' in view of the affidavit filed by the counsel for the appellants in the trial Court. The learned counsel has referred to the following authorities in support of his contentions:-- ' In a case reported as Muhammad Hashim Khan v. Major Fazal Ellahi Khan (PLD 1959 Quetta 1), it has been held that there being no specific provision for the restoration of an application for setting aside an ex parte decree dismissed in default, it can be restored under section 151 of C.P.C. By exercising inheient powers.
' In a case reported as Muhammad Moslemul Have v. Commissioner of Income Tax, East Pakistan (PLD 1963 Dacca 175), it has been observed that under Rule 1 of Order X, C.P.C., if a party is not.
Present, it would be sufficient compliance of the aforesaid provision if his counsel is present on the relevant date for admitting or denying its pleadings.
' In a case reported as Messrs Gammon-Layton, Karachi v. Secretary of State for the United States of America (PLD 1965 Karachi 425), it has been held that inherent powers under section 151, C.P.C., can be pressed into service only when there is no specific provision in the C.P.C. To cover an eventuality.
' In a case reported as Mahrof Hussain Khan v. Mst. Zahida Parveen (PLD 1981 SC (AJ&K) 123), the question which was subject-matter of controversy between the parties was as to whether the Court could issue a Commission under section 151, C.P.C., in a transfer application. It was held that the Court could do so under its inherent powers for the ends of justice.
' In a case reported as North-West Frontier Province Government, Peshawar v. Abdul Ghafoor Khan (PLD 1993 SC 418), it has been observed at page 493(E) and (F) of the report that if there is no specific provision in the C.P.C. Dealing with an eventuality, the Court may resort to its inherent powers under section 151, C.P.C., in the interest of justice.
4. In reply, Muhammad Ishaq, the attorney for respondents Nos.1 to 5. And 7 to 11, has controverted the arguments advanced on behalf of the appellants. He has contended that no reason for absence of the counsel for the appellants was mentioned in the application made for the restoration of the suit. He has contended that it is merely written in the application that Mr. Muhammad Afsar Khan, Advocate, the counsel for the appellants, and his junior, Hassan Muhammad, were 'unable' to appear on the relevant date when the suit was called on for hearing.
He has contended that the application was not accompanied by an affidavit; .The affidavit was filed after the objections were taken by the respondents, herein, on 13-5-1999 that neither any cause for absence was mentioned in the application nor an affidavit was filed. It was after the said objections filed in writing that the counsel for the plaintiffs-appellants, realizing the weakness of the case of the appellants, filed an ambiguous affidavit stating that he had to leave for Rawalpindi one day prior to the dismissal of the suit due to some "Majboori". He has further contended that the nature of 'Majboori' has not been mentioned even in the affidavit and, thus, even if the contents of the said affidavit are considered, the same would not help the case of the appellants. He has further contended that both the learned District Judge and the High Court have come to the conclusion that in fact no 'sufficient cause' was shown for the absence of the appellants or their counsel on the relevant date. He has also argued that the District Judge was not legally correct in restoring the suit in absence of a sufficient cause; he could not restore the suit under his inherent powers. He has further contended that as both the revision petitions; one filed by the respondents and the other filed by the appellants, herein, were disposed of together by the High Court through a consolidated order, it was not necessary for the High Court to deal with the question of 'sufficient cause' in detail in reference to the revision petition filed by the appellants, herein. He has cited following authorities in support of his submissions:-- ' In a case reported as Mst. Sughran Bibi v. Taja (1988 SCMR 1645), a petition for leave to appeal was dismissed and the judgment of the High Court was maintained on the ground that the petitioners failed to show sufficient cause for the restoration of their revision petition.
' In a case reported as Zulfiqar Ali v. Lal Din (1974 SCMR 162), the party and his counsel absented and, thus, the appeal was dismissed in default. An application for readmission of appeal was made on the ground that as the appeal was dismissed due to the negligence of the counsel and not of the appellant, the same might be readmitted. The contention was repelled observing that both, the appellant and his counsel should have been vigilant to prosecute the appeal.
' In a case reported as Haji Muhammad Sharif v. Settlement and Rehabilitation Commissioner (1975 SCMR 86), an application for restoration of the petition for leave to appeal was dismissed observing that no reason was communicated to the Court as to why the advocate for the petitioner and the counsel on record failed to appear in the Court on the relevant date.
5. We have given due consideration to the question as to whether it was necessary for the plaintiffs-appellants to establish 'sufficient cause' for the absence of their counsel for restoration of the suit or the same could be restored without assigning any such cause. It may be stated that a perusal of Rule 9 of Order IX, C.P.C., would reveal that it is necessary for the "concerned party to satisfy the Court that there was sufficient cause for his absence on the relevant date. The aforesaid statutory need cannot be dispensed with merely on the ground that it is desirable that the suit is decided on merits or that it is in the interest of justice to restore the suit as has been done by the District Judge in the present case. In the instant case, as has been already stated, no 'cause' whatsoever, muchless a 'sufficient cause', was mentioned in the application for restoration of the suit; it was merely averted in the application that the counsel for the appellants and his junior could not appear on the relevant date. However, an affidavit was subsequently filed when objections were raised by the respondents that the application for the restoration was without an affidavit and without assigning' any 'cause' for the absence of the counsel. It was after the said objections that the counsel for the appellants filed an affidavit wherein he swore that he went to Rawalpindi one day prior to the dismissal of the suit due to some 'Majboori'. Obviously, it cannot be said that the affidavit was filed in support of any 'sufficient cause' for the restoration of the suit because no 'cause' was narrated in the application for restoration of suit. Even if it is assumed for the sake of argument that the contentions of the affidavit can be taken into consideration, those do not help the case of the appellant because in the affidavit it is deposed that the counsel for the plaintiffs-appellants left for Rawalpindi due to some 'Majboori', what that 'Majboori' was, has not been specifically stated. It may be observed that the question of 'sufficient cause' is a question of fact which is to be decided taking into consideration the circumstances and the nature of the cause which prevented a party or his counsel from appearing in the Court. Thus, where no 'cause' has been mentioned specifically and a general averment of 'compulsion' has been made, as is in the present case, it cannot be said that there existed any 'sufficient cause' for the absence of the plaintiff or his counsel. So far as the authorities cited by the learned counsel for the appellants are concerned, it is evident from their survey, made above, that in those authorities it has been held that inherent powers of the Court can be restored to only if there is no specific provision in the C.P.C., dealing with an eventuality. Thus the said authorities go against the submissions made by the counsel for the appellants. Because in the instant case under Order IX, Rule 9, C.P.C., there is specific provision for the restoration of a suit dismissed in default.
6. It may also be observed here that an objection was also raised by the respondents that as Muhammad Khalil, one of the defendants in the case, were not impleaded as a party in the appeal, the same was incompetent because Muhammad Khalil was arrayed as respondent in the High Court and, thus, his presence was necessary. It was contended on behalf of the appellants, that, by typing mistake, the name of 'Muhammad Khalil' has been written as 'Muhammad Khalid' in the appeal filed in this Court. Therefore, the mistake may be condoned. It may be observed that the aforesaid objection was taken by the respondents herein, in their concise statement filed by them on 10-2-2000 but despite that no correction was sought by the appellants, herein. It was also half- heartedly contended that Muhammad Khalil was a pro forma respondent in the revision petition filed by the respondents, herein, and thus, his non-impleadment would not make any difference.
The argument is fallacious because Muhammad Khalil is one of the real respondents in the revision petition filed by the appellants, herein, in the High Court and, thus, his presence before this Court was necessary. It is well-settled principle of law that if a necessary party is not impleaded in the appeal, the same is incompetent and entails dismissal on this sole ground. A reference may be made to a case reported as Mst. Maqbool Begum v. Ghullan (PLD 1982 SC 46), in support of the view wherein it was held that as the decree was joint and inseparable, the non-impleadment of a necessary party in the appeal would render the same incompetent. Thus, the petition for leave to appeal was dismissed as being incompetent due to nonimpleadment of the necessary party.
' Thus, we are of the opinion that apart from merits, the appeal filed by the appellants, herein, entailed dismissal on this sole ground.
7. It was also contended on behalf of the appellants that the suit was dismissed on the date which was not a 'date of hearing' within the meaning of Rule 8 of Order IX, C.P.C. It may be observed that the District Judge has held that the suit was fixed for hearing because on that date the statements or the parties were to be recorded. There can be hardly any quarrel that a date fixed for recording statements of the parties would be deemed to be a 'date of hearing'. A reference may be made to a case reported as Kh. Muhammad Akbar Butt v. Azad Jammu and Kashmir Government (PLD 1966 Azad J&K 10), wherein it has been held that 'date of hearing' does not mean only recording of evidence but it also includes the dates on which any other step for the progress of the suit is to be taken, such as recording of the statements of the parties etc. Therefore, it is not correct to say that the suit was dismissed on a date which was not fixed for hearing.
8. It was also contended that as under Order X, Rule 1, C.P.C. The Court on the first date is to ascertain the allegations of the pleadings of the parties, it would not be deemed to be a 'date of hearing' of the suit. Irrespective of the fact that the suit was fixed by the Court for the purpose of recording the statements of the parties, the said arguments does not help the case of the appellants because under Order X, Rule, 1, C.P.C. The Court is to ascertain from the parties or their counsel whether they admit or deny the allegations made by the opposite-party in its pleadings.
Obviously, the presence of the concerned party or its counsel is necessary on such a date. Thus, a date on which the allegations made in the pleadings are to be ascertained within the meaning of Rule 1 of Order X, C.P.C., would be a 'date of hearing ' within the meaning of the relevant provisions.
9. It has been also contended that without filing appeal in this Court, the respondents cannot argue that there was no 'sufficient cause' for the restoration of the suit. The order of the High Court is in favour of the respondents. Therefore, they can defend the order of the High Court without filing an appeal on a point on which no findings were given by the High Court; even otherwise, instead of remanding the case to the High Court to give its findings, this Court can itself decide the point in the light of relevant record.
' In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with costs.