1. SHABBIR AHMED, J. --I intend to dispose of the above C.M. As moved on the same fact and grounds by the defendants, for restoration of the C.M.A, detailed below filed by them u/S. 10 of the Repealed Act, 1997 for leave to defend which was dismissed on 18.8.2000 as well as for setting aside the judgment and decree dated 19.1.2001 passed against them.
2. Civil Misc. Applications Nos. 9897/99, 9898/99, 9899/99, 10581/99, 10582/99 and 10583/99 (6) were filed for leave to defend. Mr. Mian Abdul Rauf, Advocate was prosecuting the above applications on behalf of the defendants, who is stationed at Islamabad. On 18.8.2000, none were present on behalf of the applicant/defendants. Mr. Ejaz Ahmed, appeared for the plaintiff. The listed applications referred to above were dismissed for none-prosecution as a result thereof the suit was decreed ex-parte by judgment dated 19.1.2001.
3. The application has been moved solely on the ground that the applicants/defendants Nos. 1 to 6 except defendant No. 5 (now dead) as well as, their counsel are stationed at Rawalpindi/Islamabad respectively as no intimation notice was received by the counsel or the defendants for the hearing of the application on date viz. 18.8.2000 or on 19.1.2001 when the applications were fixed for hearing. The applications were dismissed on 18.8.2000 and on 19.1.2001, the suit was decreed, It was also reiterated that earlier the intimation notices regarding hearing were being issued.
4. I have heard the learned counsel for the parties.
5. Sindh Chief Court (O.S.) Rules is silent about the intimation notice to the party or counsel, who is stationed out of Karachi. However, Rule 8 of High Court Rules and Orders Volume V applicable to the Appellate Side provides intimation or pacca date fixed in a case to be sent by registered post card (A.D.) to such parties as are not represented by counsel. Proviso 2 to the said rule also provides that a case in which an Advocate not ordinarily resident of Karachi has to appear, the Deputy Registrar may fix an actual date if such Advocate puts in a written request for that sufficiently in advance to give the other party or parties at least ten days notice or a written request accompanies by the consent of the opposite counsel in the case.
6. The aforesaid practice has been followed constantly on original side of this Court as well and the parties who are not represented by a counsel are being intimated by intimation notice regarding the date of hearing as well as to the counsel, who are stationed outside Karachi. This practice is in vogue since long.
7. I have examined present case as well. The intimation notice to the counsel was issued for those hearing where matter was not adjourned to a fix date 18.8.2000 was not a fixed by the Court of hearing e cause. No intimation notice was issued to the defendants counsel, namely, Mr. Mian Abdul Rauf, who is admittedly stationed at Islamabad, nor the intimation notice was sent when the matter was listed for final disposal on 19.1.2001. In such circumstances, I am of the view that non- appearance by the counsel has been explained reasonably, which is "sufficient cause" for setting aside an ex-parte decree passed against the defendants due to non-appearance of their counsel, which was due to non-issuance of intimation notice of hearing. Under Rule 74 of Sindh Chief Court (O.S.) Rules provides that interlocutory application shall contain only one prayer or one series of alternative prayers of the same kind, In the present case, the application contains two prayers, which is contrary to the rule referred to above and the counsel for the defendants was allowed to elect one of the prayer made therein and he elected prayer for setting aside the ex-parte decree.
8. From the above narration, I am of the view that the defendants have made out a case for recall of the ex-parte decree as the absence of the defendants counsel has been reasonably explained.
9. The knowledge of ex-parte order was gained by the defendants on 21.3.2001 when the staff Engineering Department visited the project of the defendants at Karachi. The application was moved on 26.3.2001 therefore, the application was within time. Resultantly, the judgment and decree dated 19.1.200.1 is recalled subject to the security. The properties already mortgaged is taken security and the defendants are restrained not to deal with the properties in any manner Order accordingly.