MUHAMMAD MUSA K. LEGHARI, By this order I intend to dispose of C.M.A. 305 of 1999 and C.M.A 306 of 1999 which are interlinked. C.M.A. 306 of 1999 is an application under Order 41, Rule '19 read with Section 151, C.P.C. Fur readmission of the appeal dismissed in default on 23.9.1999 duly supported by affidavit of appellant No. 2 Farid Ahmed. C.M.A. 305 of 1999 is an application under Section 5 of the Limitation Act for condonation of delay in making application for readmission of the appeal which is also supported by the affidavit of Farid Ahmed Khan, the appellant No. 2/deponent. He has stated in his affidavit that on 29.11.1999 on enquiry from the office of this Court he came to know that the appeal was dismissed on 23..9.1999.. Accordingly, he informed his father who advised him to contact his Advocate Mr. Nawab Mirza who after-failing to establish any contact with the above- named counsel he engaged Mr. Kamaluddin learned Advocate and after ascertaining the record from the officer of this Court informed him that the appeal was dismissed in default vide order, dated 23.9.1999. He further stated in his affidavit that according to diary of the Court, dated 10.9.1999 the orders were passed for issuance of notices to the appellants. The notice issued to the appellants contained an endorsement of the bailiff stating that .He met Farid Ahmed, appellant No. 2 who refused to accept the notices saying that they have no case whatsoever in the Court. The appellant No. 2/deponent specifically denied this fact in paragraph No 7 of his affidavit stating therein that The said enforcement of the bailiff was false and incorrect as the bailiff never met him at any place. He further deposed that he or his father appellant No. 1 were no more residing or carrying on any business or running any shop at Goods Naka Hyderabad but for the last about 25 years they were permanently residing in Latifabad Hyderabad and that the shop at Goods Naka was closed by his father about eight years back and that his father was lying sick on the bed He further deposed that he had no knowledge of any notice for the date of hearing viz. when the appeal was dismissed. However, no notices were issued to his Advocates for the above date of hearing.
2. In the application under Section 5, of the Limitation Act the appellant has prayed for condonaton of delay in filing the appeal if any as according to appellant this application was filed within the prescribed limitation after having the knowledge of its dismissal.
3. One counter-affidavit to the abovesaid two applications has been filed by the respondent alleging therein that both the applications were ma/a fide, motivated, misconceived and the same have been submitted after the prescribed period of limitation. It was further deposed that the delay has not been sufficiently explained, and there was a gross .Negligence on the part of party as well as their counsel. It was further deposed that the appellant had the knowledge of the date of hearing but they willfully remained absent. Thus, there was no ground for re-admission of the appeal.
4. I have heard Mn./ 'Kamaluddin, learned counsel for the appellants and Mr. Abdus Salam Qureshi, learned counsel for the respondents and perused the record.
5. Learned counsel for the respondents has relied upon undermentioned citations.
(1) 1974 SCMR 162, (2), 1985 MLD 1616, ,(3) PLD 1991 SC 1082, (4) PLD 1992 Lah. 156 and (5) 1984 CLC 3332.
6. He has contended that it was the boundaht duty of the party and the counsel to pursue the appeal properly and ensure. That it was deligently Prosecuted. He contends that if the counsel engaged by the party was lacking in his sense of responsibility to . The Court the other side should not suffer for that. He further submits that the Conduct of the appellant was not bona fide and he intended to protect the proceedings. He further contends, that the application was barred by time and no sufficient 'case was shown.
7. On the other hand learned counsel for the appellant has contended that the appellant had no knowledge of the dismissal of the appeal, and when he came to know about the dismissal of the appeal he filed the application for readmission of appeal within the prescribed period of limitation.
He contends that sufficient' reasons have been explained for non-appearance and the lack of knowledge on the part of the appellants. He further submits that the law favours adjudication, of cases on merits and that the Courts should be liberal in ordering restoration of in default. In support of his contention he has relied on the following authorities:-
(1) 1996 SCMR 1508, (2) 1992 MLD 967, (3) 1986 CLC 1441 and (4) 1.999 MLD 553.
From the perusal of the diary dated10.9.1999 it appears that on that date none had appeared on behalf of the appellants resultantly it was directed that a direct notice may be issued to the appellants for hearing on 23.9.1999. I have perused the endorsement on the notice which reveals that the Process-server met a person at Goods Naka identifying himself to be Farid Ahmed viz. Appellant No. 2 who allegedly stated that he has no concern whatsoever with the appeal and according to endorsement he refused to accept the notice.
8. In his affidavit in support of the application it has been specifically denied by the appellant No. 2 Farid Ahmed that the Process-server ever met him and offered the said notices. He further deposed that the shop of his father at Goods Naka was closed about eight years back and that they were permanently residing in Latifabad, Hyderabad since last 25 years. This statement given on oath by appellant Farid Ahmed has not ben controverted. The fact that notice of the date of hearing viz. 23.9.2000 was never issued to the learned counsel for the appellants who are practicing at Karachi is also borne out from record. TO me, it does not appeal to the common sense that a person who is an appellant would refuse to accept the notice of his own case wheres the endorsement of the process-server is silent as to who identified Farid Ahmed to him and the refusal, if any, is not alleged to have been witnessed by anybody, Keeping in view the shaby conduct of the process-server it is not difficult to conclude that such endorsement could not be taken to. Be a gospel truth.
9. There is no cavil to the proposition of law that the parties and their counsel must act vigilantly in prosecuting the causes and if there is a contumacy on their part the other party should not suffer for that. The question which requires consideration is that whether there was a wilful negligence on the part of a party. So far as the, present case is concerned I am of the view 'That the appellants have shown a sufficient cause for their non-appearance on the date when the case was fixed for hearing and subsequently knowledge of the dismissal of the appeal for non-prosecution. For any slackness on the part of the counsel, the parties should not be extremely penalized.
10. It is now well-settled proposition of law that the expression "sufficient cause" used in Order 41, Rule 19, C-.P.0 is not susceptible of an exact definition and no hard and fast rule can be laid down to cover all possible cases. The question must of ,necessity depend on the facts and circumstances of each case and' lies within discretion of the Court. This discretion is to be exercised on judicial principles. However. a very strict view should not be taken. This view finds support from the authorities reported as Muhammad Halirn and others v. H. H. Muhammad Naim and others (PLD 1969 SC 270), 'Mst. Mariam Bai and another v. Mst. Mehrun Nisa Begum (1985 SCMR 2064) and Mst. Begum v. Mst. Begum Kaniz Fatima Hayat j1989 SCMR 883).
11, So far as the application of Section 5 of Limitation Act, 1908 is concerned the expression "sufficient cause" in Section 5 of the Limitation Act should also receive a liberal construction 'so as to advance cause of substantial justice and includes grounds of justice, equity and good conscience. This view is supported by the authorities reported as Muhammad Nazir v. The Secretary Cooperative Department (1989 MLD 1156) and (1994 MLD 1965).
12. That it is a well-settled principle that law favours adjudication on merits and cases should be decided on merits by affording ample and adequate opportunity of hearing to the parties so that substantial justice could be done, and no party should be deprived of his right.
13. For the foregoing reasons, I would, in the circumstances allow these, applications and order for re-admission of the appeal to its original position.
14. So far as the inconvenience cause to the respondents is concerned it will meet the ends of justice that a cost of Rs.1,000 (Rupees one thousand) is imposed upon the appellants which would be paid to the respondents within ten days hereof.
C.M.A. 207 of 1997 This application is allowed and consequently the present surety is discharged with direction that amount deposited by him as well as his documents by returned forthwith and his mortgaged property is also ordered to be scored off. The appellants are required to furnish fresh surety and readmission of this appeal will be effective from the date of acceptance of their fresh surety.