' MUHAMMAD YUNUS SURAKHVI, ACTG. C.J.--- This is an application for restoration of Appeal No,140 of 2001 which was dismissed by the Court for default of appearance on 20-12-2001. The relevant order passed by the Court reads as under:-- "Nobody has turned up on behalf of the appellants. Therefore, the appeal is hereby dismissed in default."
2. The necessary facts, giving rise to the present application, are that Appeal No,140 of 2001 was fixed for hearing for 20-12-2001 by this Court. On the date fixed nobody appeared on behalf of appellants, cu. Therefore. The appeal was dismissed in default. The present application has been moved by the petitioners herein through their counsel, Raja Muhammad Hanif Khan, alleging therein that all the appellants in the appeal are Government officials. They did not appear on the assumption that their counsel shall appear before the Court and address the arguments. Due to mistake of the clerk of the counsel and inadvertence of the counsel for the appellants, the council could not note the case in his diary and due to this inadvertence did not appear before the Honourable Court on the relevant date. An affidavit of the counsel is also attached in support of the application. It is further alleged in the application that. There is a consistent practice that each counsel visits the Registry Office of the Supreme Court every day after 11 a.m. So as to confirm as to which case is to be heard on the next day and which one would be adjourned. Due to "Eid" holidays commencing from 16th to 19th December. 2001, the counsel for the appellants could not confirm from the Registry Office the cause list of this Court and the aforementioned case due to inadvertence was not entered in the diary and on account of this mistake the counsel did not appear before the Court on the date of hearing. It was also averred by the petitioners in their application that the appeal in question involves important questions of law and tact and a huge amount of Government exchequer is involved, therefore, it would be in the interest of justice to hear the appeal on merits so that all the points of fact and law may be determined by the Court.
3. While opposing the application for restoration of appeal the learned counsel for the respondents, Mr. Abdul Rashid Abbasi, in his objections stated that the mistake of not noting down the case in the diary is belied by the record of the Court. According to him the learned counsel for the petitioners was duly served by the Honourable Court with a notice intimating the date of hearing of the appeal issued on 21-11-2001 which was served upon the learned counsel for the petitioners on 22-11-2001, whereby it was intimated that the date of hearing of appeal has been fixed as 20-12- 2001. In view of notice of this Court, as aforesaid, the default of non-appearance cannot be justified and the dismissal of case for default of appearance ordered by the Court merits to be maintained.
It was also stated in the objections that no such reason or ground has been advanced on the part of the petitioners as would have beyond their control and power. The gross negligence committed by and on behalf of petitioners merits that the order of the Court. Dated 20-12-2001 may be maintained and upheld. It was further alleged in the objections that in view of the notice of the Court .Served upon the counsel for the petitioners. The failure on the part of petitioners to resort to the practice of noting down the cases from the Registry Office one day ahead loses importance.
The objections raised on behalf of the respondents are supported by the affidavit of the learned counsel for the respondents.
4. We have given our due consideration to the grounds taken by the petitioners and their counsel, Raja Muhammad Hanif Khan, in the application for restoration of appeal as well as the objections raised by Mr. Abdul Rashid Abbasi, the learned counsel for the respondents. Raja Muhammad Hanif Khan, the learned counsel for the petitioners, has relied upon reported cases titled Anjuman Masjid New Town v. Syed Muhammad Binhori PLD 1990 SC 753, Asghar Abbas v. Muhammad Ramzan and 4 others 1993 CLC 1313, Mst. Zubaida Mumtaz Begum and others v. Ma. Ikram Jan and another 1990 SCMR 1025, Muhammad Nazir and 9 others v. Muhammad Sadiq and 7 others PLD 1989 Azad J&K 28.
In Anjuman Masjid New Town v. Syed Muhammad Binhori PLD 1990 SC 753 it was observed that diary of the counsel showed the relevant date as 13-10-1984 and further he also appeared in the Court on 13-10-1984 when he was told that the relevant date in tact was fixed as 13-9-1984. Default in appearance stood fully explained by the explanation of counsel in the affidavit sworn and filed by him. It was held that the case was not of either gross negligence amounting to wilful mala fide disregard of client's interest or a deliberate attempt to avoid professional responsibility for reasons like lethargy, incompetence and insensitivity etc. It was further observed as under:-- "The learned counsel for the petitioner, who knew the learned Advocate who submitted his own affidavit, did not level any such charge against him. He also was hesitant to state, on account of ordinary conduct of said Advocate, that he had told a lie in his affidavit and we may remark that Honourable members of the Bar very rarely submit their own affidavits in support of their client's plea when the same can be supported by the client's own affidavit. Keeping in view all the circumstances of this case, the submission of the Advocate of his own affidavit further signifies the strength of the case of the respondent/defendant on the issue of non-appearance before the learned trial Court on the relevant dates."
' In Asghar Abbas v. Muhammad Ramzan and 4 others 1993 CLC 1313 it was observed as follows:-- ".... 3-10-1979 was the date fixed for evidence of the defendants, which could not be recorded, and for the same purpose the case was adjourned to 3-2-1980. Evidently on the said date, there was no plausible reason why the plaintiff or his attorney should have opted to absent himself. He had not to adduce his evidence and was subject to no strain. He had only to bring along his counsel for cross-examining the witnesses of the other side, if they were -available for examination. Generally, even in absence of the party, the counsel takes care to come to Court; and if he is busy elsewhere, he would certainly send his clerk to make a request to the Court for accommodating him, or he will arrange for presence of another Advocate by way of proxy, so that the cause does not go by default.
' It appears that absence of the plaintiff-petitioner from the proceedings of his civil suit on 3-2-1980 was not intentional- and it was owing to certain confusion about the date of hearing. The plaintiff did not stand to gain anything by being negligent or intentionally erratic in noting down the correct date of hearing, on the suit having been adjourned on 3-10-1979 to a future date. Carelessness on the part of the counsel in failing to appear in the Court in absence of his client has often been condoned."
' In Mst. Zubaida Mumtaz Begum and others v. Mst. Lkram Jan and another 1990 SCMR 1025 the facts were that the appeal was dismissed in default. The application for restoration of appeal having been made on the same day alongwith counsel's affidavit explaining cause of non- appearance, the appeal was restored. Revision against the restoration of appeal was dismissed.
The petitioner's contention was that there was no evidence before the Appellate Court on the basis of which it could hold that non-appearance of a party or its counsel at the time when the appeal was called for hearing was unintentional and that the affidavit submitted by the counsel in support of application for restoration could not be treated as evidence. It was held that there was no reason why the Appellate Court could not take into account the affidavit filed by the respondent's counsel wherein he had detailed the reasons for his absence from the Court at the time when the appeal was called for hearing.
' In Muhammad Nazir and 9 others v. Muhammad Sadiq and 7 others PLD 1989 (Azad K&J) 28 it was held that the learned Judge ought to have believed the affidavit filed by the counsel for the appellants to the effect that he had made an application for impleading the legal representatives of the deceased appellant within time and that the said application had been misplaced by the concerned official due to his negligence and for reasons best known to him. The Advocate who had filed the said affidavit is an Advocate of the considerable standing at the Bar and there appears no apparent reason as to why he should have made a false solemn affirmation in his affidavit for the sake of interest of his client only especially when he had no possible interest in the outcome of the case before the District Judge.
5. On the other hand controverting the contentions advanced by the learned counsel for the petitioners, Mr. Abdul Rashid Abbasi, the learned counsel for the respondents, placed reliance on reported cases titled Khawaja Ghulam Qadir and another v. Muhammad Sharif and 11 others 2000 MLD 2047, Muhammad Rafique v. Muhammad Shafi Dar and 2 others 2001 PLC (C.S.) 202, Ch. Ajaib Hussain and another v. Mst. Zareen Akhtar and 11 others 1999 YLR 1426, Qurban Ali and another v.
The State PLD 1984 SC (AJ&K) 104, Zulfiqar Ali v. Lal Din and another 1974 SCMR 162, Muhammad Nawaz and 3 others v. Mst. Sakina Bibi and 3 others 1974 SCMR 223 and Muhammad Younas and 7 others v. Auqaf Department and others 2000 MLD 1668. In Khawaja Ghulam Qadir and another v.
Muhammad Sharif and 11 others 2000 MLD 2074 it was observed as follows:-- "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 thesame 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, much less a 'sufficient cause' was mentioned in the application for restoration of the suit; it was merely averred 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 further observed in the aforesaid authority in a following manner:-- "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 plaintiff or his counsel."
' In Muhammad Rafique v. Muhammad Shafi Dar and 2 others 2001 PLC (C.S.) 202 it was observed that even if the period of limitation reckoned from 1-1-1999, the date on which the notice was served on the counsel for the petitioner, the petition for leave to appeal is barred by 17 days. The affidavit that notice served on counsel for the petitioner was missed, does not constitute a sufficient cause for excusing the delay because even if the notice was lost, the counsel for the petitioner had the knowledge of the announcement of the decision and he could further confirm the matter from the office of the Service Tribunal. Therefore, the affidavit to the effect that the counsel for the petitioner in the Service Tribunal could not inform him of decision due to misplacement of notice does not bring the case within the ambit of a bona fide mistake rather this is a case of negligence which cannot be: excused.
' In Ch. Ajaib. Hussain and another v. Mst. Zareen Akhtar and 11 others 1999 YLR 1426 it was observed that the fact that copies were obtained and were misplaced does not make out a case of condonation. The misplacing of a document is an example of carelessness or negligence.
' In Qurban Ali and another v. The State PLD 1984 SC (AJ&K) 104 it was observed that "sufficient cause" has always been defined as the circumstances beyond the control of the party. It is correct that the Court had been lenient and had been condoning some negligence, i,e, the negligence to the extent to which it is regarded as human but gross negligence had never been condoned. The Courts had always been strict in demanding proof of sufficient cause for every day which has expired after the period of limitation. It was further observed that even if an important point is involved in a case, that would not in any way allow the Court to use its discretion in an arbitrary way to override the provisions of the Limitation Act and the Supreme Court Rules. This case has no relevancy to the facts of the present case as in this case the period of limitation for filing the appeal had expired and the judgment had been announced in presence of counsel for the appellant.
' In Zulfiqar Ali v. Lal Din and another 1974 SCMR 162 the appeal was dismissed for non-prosecution.
Restoration was sought on the ground of default due to negligence of counsel and no negligence on appellant's part. It was observed that the contention was without force. Mere engagement of counsel does not absolve the litigant of all his responsibilities. Both the party as well as the counsel is bound to see that the appeal is being prosecuted properly and diligently. In case the counsel was engaged, if lacking in his sense of responsibility to Court, the opposite party cannot be made to suffer on that account.
' In Muhammad Nawaz and 3 others v. Mst. Sakina Bibi and 3 others 1974 SCMR 223 it was observed that initial obligation to enquiry about the decision of a case or to arrange for communication of result of case is on parties to case. The counsel, even if neglecting to inform his client about the fate of the case, this fact per se is not a sufficient ground for condonation of delay when a valuable right accrued to the opposite party.
' In Muhammad Yunas and 7 others v. Auqaf Department and others 2000 MLD 1668 it was observed that the procedure laid down by law cannot be departed from by resorting to the inherent powers. The respondents failed to establish any "sufficient cause" for restoration of appeal; thus the High Court was not competent to resort to its inherent powers that the policy of law is to decide the case on merits rather than on technical grounds.
6. From the survey of case-law, it appears that when a cause is dismissed for default of appearance of a party or his counsel, it is the duty of that party or counsel to show "sufficient cause" as to why the cause was not prosecuted on the relevant date. If the circumstances were beyond the control of the party or his counsel, then the same has always been considered to be a sufficient cause for the restoration of suit or appeal, as the case may be In the instant case sufficient cause shown by the learned counsel for the petitioners is that on the date fixed for hearing the appeal he could not verify from the Registry Office of this Court one day prior to the hearing as a normal practice as to which case is to be heard and which one is to be adjourned as before 20th December, 2001 there were Eid holidays; thus the non-appearance on the part of the petitioners or their counsel was bona fide and not intentional. Had this been the situation as has been alleged by the counsel for the petitioners in their application for restoration of appeal, probably the argument might have been sufficient to restore the appeal and to hear the same on merits out after going through the objections filed by the learned counsel for the respondents the position seems to be totally different. The whole fabric of the arguments of the learned counsel for the petitioners crumbles down because of the fact that he was duly served with a notice by the Registry Office that the appeal shall be heard on the relevant date, i,e, 20-12-2001. After the service of this notice upon the learned counsel for the petitioners there seems to be no justification to allege that the counsel for the petitioners could not note in his diary the date fixed for hearing the arguments in the appeal. Whether the important points of law and facts were involved in the case is a different question altogether. Similarly the contention that the appeal should have been decided on merits as valuable rights of parties are involved has not been recognized as a sufficient cause for the restoration of suit/appeal which is dismissed in default for non-appearance. It was also the duty of the appellants as well to abreast their counsel of the fact that which date was fixed for hearing the appeal because there are as many as 11 appellants who though are Government officials but they cannot be absolved of their responsibility to contact their counsel to appear and argue the appeal on the date fixed.
7. In our considered view, the petitioners or their counsel have failed to show any sufficient cause for restoration of appeal which was dismissed in default for non-appearance of the petitioners as well as their counsel. Therefore, the application for restoration of appeal, having no merits in it, stand dismissed.