RAFIQ AHMAD KHAWAJA vs ABDUL HALEEM

1. ZAFFAR HUSSAIN MIRZA, J-This is an appeal by special leave, from a judgment of a learned Single Judge of the High Court of Sind, Karachi, dated 4-11-1978, whereby the second appeal of the appellant herein, was dismissed.

2. Briefly stated the facts leading to this appeal are that premises bearing No. 123/R/2 situated at P. E.

3. C. H. S., Karachi, is owned by the respondent and was let to the appellant, at a monthly rental of Rs.

4. 200 and additional monthly rental of Rs. 150 for fancy fittings and fixtures, total rent payable being Rs. 350 per month. On 16-I1-1976, the respondent filed ejectment application before the Rent Controller, against the appellant, alleging that he required the premises for his bona fide personal use and that the appellant was a persistent defaulter in the payment of rent. The appellant contested the proceedings and engaged a counsel to represent him therein. After the appellant filed written statement, on 24-2-1977, the learned Rent Controller, passed the order for deposit of arrears and current rent pending proceedings, and also framed issues. The case then adjourned, in presence of counsel for the parties, to 1-3-1977 for recording evidence. But as per the case diary of the proceedings, the case did not proceed until on 25-3-1977, in presence of the counsel for the parties, the case was adjourned for want of time to 7-4-1977. On this date no one appeared for the appellant and so the learned Controller proceeded to record the evidence of the respondent (landlord) ex parte, which was concluded on 8-4-1977, when, since the appellant and his counsel were absent, his evidence was closed in default. After hearing the arguments of the respondent's counsel, on a subsequent date, the learned Controller passed final order dated 9-4-1977, directing the ejectment of the appellant, on the uncontroverted evidence produced by the respondent. On 7-5-1977, the appellant submitted application before the Controller praying for setting aside the ex parte order of ejectment, under Order IX, rule 9, C. P. C. The plea of the appellant, in this application, was that he had no knowledge about the hearings of the case and that he received the information, that the case bad been decided, by a letter from the Ex-Clerk of his Advocate. He further averred that after engaging the Advocate, he had left for Lahore and during his absence his Advocate joined Government service without inform--ing him. By his order, dated 28-7-1977, the Controller dismissed this application. The appellant then challenged the order in appeal which was dismissed by the learned II-Additional District Judge, Karachi, by his order, dated 21-8-1978. By a separate appeal, the appellant also challenged the main order of ejectment passed by the Rent Controller, dated 9-4-197', which appeal was also dismissed by the learned III-Additional District Judge, Karachi, on the ground that it was barred by limitation as no sufficient cause for condonation of delay was made out vide judgment, dated 21-1-1978. Finally, the appellant's Second Appeal before the High Court of Sind against the aforesaid judgment, dated 21-8-1978, was also dismissed on 4-11-1978.

5. The appellant then approached this Court and leave to appeal was granted by order, dated 18-4- 1979, in order to further examine the question that the appellant should not be allowed to suffer due to the negligence of his counsel.

6. The sole contention in support of this appeal by the learned counsel appearing for the appellant is that the appellant should not be made to suffer on account of the negligence of his counsel who was under a legal duty to appear and defend or at least to inform him of the fact of his having taken up government job, so that he could make arrangement for his proper representation in the proceedings. Reliance in support of this contention was placed on Shivrattan G. Mohatta v.

7. Muhammad Steamship Co. Ltd. (PLD 1965 SC 669). It would be pertinent, in this connection, to note the observation of the learned Judge in the High Court, who found from the record and proceedings of the case that Mr. Iqbal Ahmad appeared for the appellant and not only signed the written statement as his counsel alongwith the appellant himself, but even submitted the rent account on his behalf under his signature. As regards the conduct of the appellant himself, the learned Judge observed: - "However, I feel that it was not enough for the appellant to merely state that his counsel had been negligent in informing him of the dates of hearing as in fact -no sufficient foundation for that allegation had been laid. I find that the appellant has not even filed the letter which he is alleged to have received from the clerk of his Advocate."

8. He further observed: --- "The appellant, apart from alleging lack of information Mr. Raja Qureshi Advocate, has not provided any proof that he himself was in Lahore before 7th February, 1977 and again after 7th February, 1977.

9. Then again be has not given any detail in his affidavit in support of his application under Order IX rule 9, C. P. C. As to why he was delayed in Lahore for such a great deal of time that he could not contract his Advocate between 7-2-1977 and 7-4-1977."

10. We have perused the copy of the case diary filed on the record of this appeal on behalf of the appellant, which indicates that on 25-3-1977, the Advocates for the parties are present and the case was adjourned for wan of time to 7-4-1977 for evidence. But thereafter neither the appellant nor his counsel appeared in Court. It is, therefore, clear that the counsel for the appellant was aware of the date of hearing for recording of evidence.

11. In the facts and circumstances of this case, we are not impressed with the contention that the appellant was under no obligation to pursue his case and that his case has gone by default entirely due to the negligence of his counsel. In the case of Shivrattan cited by the learned counsel, this Court refused to interfer with the order passed by the learned Judges of the Appellate Bench of the High Court by which the learned Judges had found the counsel for the plaintiff to be negligent in the prosecution of the suit, but thought it would be wrong to make the plaintiff suffer on account of his professional misconduct and this Court concurred in this view. However, the decision in that case did not proceed solely on that basis but further reasons were given in support of the order of the Appellate Bench. The case, therefore, is no authority for the proposition that a party cannot be made to suffer on account of the negligence of his counsel in the conduct of proceedings before the Court In Zulfiqar Ali v. Lal Din and another (1974 SCMR 162), it was similarly contended before this Court that the dismissal of the appeal for default was due to the negligence of the counsel and not due to an negligence on the part of the appellant. Repelling the contention, late Hamoodur Rehman, C. J. Observed;---- "The mere fact that a litigant has engaged a counsel to appear on his behalf does not absolve him of all responsibility. It was as much his duty as that of the learned counsel engaged by him to see that the appeal was properly and diligently prosecuted. If he engaged a counsel who was lacking in his sense of responsibility to the Court, it is he who should suffer and not the other side."

12. Similar view was taken by this Court in Chiragh Din v. Mst. Jannat Bibi (1976 SCMR 399)

13. Learned counsel appearing for the appellant had no cavil with the dictum laid down in these decisions. He, however, tried to distinguish these cases on the ground that, in the present case the counsel whose negligence is the subject matter of consideration, had left the profession and taken up govern--ment service, so that he was no longer subject to the discipline of his calling as an Advocate. We do not think that this distinction is in any manner material. As pointed out earlier, the High, Court on a thorough re-examination of the explanation furnished by the appellant in support of his non-appearance, has come to the conclusion that the appellant himself was negligent in not keeping in touch with his counsel, when circumstances indicate that he was available at Karachi.

14. Nothing has been pointed out to us to disagree with this conclusion of the learned Single Judge.

15. For the foregoing reasons, we find no reason to interfere and are of the opinion that the order passed by the High Court is unexceptionable. The appeal, therefore, fails and is accordingly dismissed with costs. The appellant is, however, granted four months' time for surrendering possession to the respondent subject to payment of rent.