EASTERN STEELS Versus NATIONAL SHIPPING CORPORATION

Nasir Aslam Zahid, J. ‑‑ This High Court Appeal has been filed by the appellant/plaintiff being aggrieved by the order, dated 15th August,1982 passed by a learned Single Judge of this Court allowing the application under Order IX, rule 13 read with section 151, C.P.C moved on behalf of the respondent/defendant for setting aside the ex ante decree passed in the suit in favour of the appellant/plaintiff onust,1977. Briefly the facts of the case are that on 17th October,1970 the appellant filed Suit No.493 of 1970 in this Court against the respondent for recovery of Rs.4 lacs. The respondent on being served made appearance through their Advocate. A written statement was filed on behalf of respondent, who contested the claim of the appellant. The written statement was filed on 15th March,1971. The respondent also made discovery of documents on oath on 28th April,1971 and issues were framed by the Court by consent of the learned counsel on 10th May, 1971. After the framing of the issues, the counsel, who had been engaged by respondent, migrated to Uganda and in his place the respondent engaged/appointed Mr. Abdullah Shah, Advocate, to represent them in the suit. It is an admitted position that after the framing of issues on 10th May,1971 till 22nd August,1977 no proceeding took place, as the suit remained pending awaiting its turn for fixation in Court for regular hearing. On 22nd August,1977 the suit was fixed for the first time for evidence of the parties and on that date no one on behalf of the respondent appeared and an ex ante decree was passed in favour of the appellant. On 3rd November,1971 the aforesaid application under. Order IX, rule 13 read with section 151, C.P.C was filed on behalf of the respondent. The application was supported by an affidavit of one officer of the respondent corporation. No counter‑affidavit was filed and as observed earlier, by the impugned order, dated 15th August,1982, the learned Single Judge allowed the application of the respondent and the ex arte decree was set aside subject to the condition that the respondent will pay a sum of Rs.2,500 as costs to the counsel for the appellant within 15 days. We. have heard Mr. Mohsin Tayeb Ally, learned counsel for the appellant and Mr. I. H. Zaidi, learned counsel, who has appeared on behalf of the respondent.

2. On the question that the application for setting aside ex ante decree was moved after 30 days and it was barred by limitation, Mr. Mohsin Tayab Ally, learned counsel for the appellant, stated that in this appeal he cannot press the question of limitation in view of the judgment of the Supreme Court of Pakistan in the case of Rehman Weaving Factory v. Industrial Development Bank of Pakistan P L D 1981 S C 21. On merits it has been argued that from the affidavit filed by the officer of the respondent in support of the application for setting aside ex parte decree it is apparent that the Advocate, Mr. Abdullah Shah, who had filed Vakalat nama on behalf of the respondent in the suit, was not only negligent but grossly negligent and, therefore, the respondent must suffer for such negligence and in view of the law declared by the Supreme Court of Pakistan the application for setting aside the ex ante decree should have been dismissed by the learned Single Judge. Learned‑counsel for the appellant has relied upon the following reported decisions of the Supreme Court in sup ort of his proposition:

(i) Muhammad Anwar v. Sultan Muhammad Khan 1974 S C M R 162.

(ii) Chragh Din v. Jannat Bibi 1976 S C M R 399.

(iii) Rafiq Khwaja v. Abdul Haleem 1982 S C M R 1229.

Reference was also made y the earned counsel to another decision of Supreme Court of Pakistan in the case of Shivrattan G.Mohatta v. Mohammadi Steam shi Co. Ltd. P L D 1965 S C 6 , n this case a suit he plaintiff was dismissed in default of appearance but the order of the learned. Single Judge was reversed in Letters Patent Appeal by the L.P.A. Bench, who found that the counsel for the plaintiff had been negligent in prosecution of the suit but thought that it would be wrong to make the plaintiff suffer on account of his Advocate's professional misconduct. The Supreme Court, while hearing the appeal against the order of the L.P.A. Bench, concurred in the view taken by the L.P.A. Bench of the High Court but added that there were other sufficient and good grounds for restoration of the suit which reasons were specified in that judgment of the Supreme Court. In 1974 S C M R 162, a second appeal was dismissed in default by a learned Single Judge of the Lahore High Court and the Division Bench of the Lahore High Court dismissed in limine the appeal filed against that order. The matter came up before the Supreme Court in a petition for special leave to appeal and it was argued on behalf of the petitioner that the dismissal of the appeal in default was due to the negligence of the counsel and not due to the negligence on the part of the petitioner and, therefore, the restoration should have been allowed. This contention was not accepted and the Supreme Court observed as follow:‑

"The contention is without any force. The mere fact that a litigant has engaged a counsel to appear on his behalf does not absolve him of all responsibilities. 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 responsibilities to the Court, it is he who should suffer and not the other side.

In the circumstances of this case, when no one appeared when the appeal was called on the Court had no alternative but to dismiss the appeal in default. The refusal to restore the appeal was also fully justified in view of .the fact that the ground made out in the petition for restoration was found to be untrue. The petitioner could not legitimately take any exception to this order. The appeal was, therefore, rightly dismissed by the Division Bench and we see no reason to interfere."

In 1976 S C M R 399, a petition for special leave to appeal had been dismissed for non‑prosecution by the Supreme Court and an application for restoration was also dismissed in spite of the fact that the Advocate for the petitioner was ill on the date of hearing, for the reason that neither the Advocate‑on‑Record nor the petitioners appeared on the date of hearing.

In 1982 S C M R 1229, in the facts and circumstances of that case, the Supreme Court was not impressed with the contention that the appellant was under no obligation to pursue his case and that his case had gone by default entirely due to the negligence of his counsel. The Supreme Court took note of the fact that the High Court on a thorough re‑examination of the explanation furnished by the appellant in support of his non‑appearance had come to the conclusion that the appellant himself was negligent in not keeping in touch with his counsel when circumstances indicated that he was available at Karachi. A reference was also made to P L D 1965 S C 669 and it has observed that the decision in that case did not proceed solely on the basis that the party should not suffer on account of the professional misconduct of his Advocate but further reasons were given in support of the order of the High Court. It was, therefore, observed that P L D 1965 S C 669 has 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.

On the basis of the authorities relied upon by him it has been contended by the learned counsel for the appellant that the application for setting aside the ex arte decree could not be allowed by the learned Single Judge as the respondent should suffer for the negligence of his counsel.

3. With all humility we may observe that in none of the cases cited, the Supreme Court of Pakistan has laid down as an absolute rule with no exceptions that where the counsel of a party has been negligent, his client must always suffer. No doubt a party can be made to suffer for the; negligence of his Advocate but generally the Court also examines the conduct of the party. If the party is also at fault or guilty of careless‑, ness or negligence, he suffers for his fault and for the fault of his Advocate. But where the party is not at all at fault and is not guilty or any carelessness or negligence, in view of the special circumstances or the case and to save the party from suffering grave injustice or hardship, the Court may not penalize the party for the negligence of his Advocate. It is neither possible nor desirable to identify with certainty all possible situations where the Court will not penalize the party solely for the negligence of his Advocate. The decision in that regard will be made by the Court on consideration and appraisal of the particular set of facts and circumstances that are presented to the Court in a given case. Again with all humility we may enunciate two general principles in this context:7

(i) As a general principle it may be stated that a party normally must suffer for the negligence of his Advocate in the conduct of the case entrusted to the Advocate. It has to be kept in mind that the Advocate then acts on behalf of the party on the basis of an express power given to the Advocate. But this is not an absolute rule.

(ii) In matters where the party is not at fault and is not found guilty of any negligence or carelessness, and where grave injustice or great hardship will take place if the party is penalized for the negligence of his Advocate, the Courts are not powerless to grant relief to the aggrieved party.

It is in the light of the aforesaid principles that we propose to dispose of this appeal.

4. In this case in the affidavit in support of the application for setting aside the ex parte decree the deponent, an officer of the respondent Corporation, has stated that enquiries were made about Mr.Abdullah Shah, Advocate, and the respondent came to know that the said Advocate was in detention. It has been argued by Mr.Mohsin Tayabally, learned counsel for the appellant, that the statements made in affidavit of the officer of the respondent are hearsay and the same should have been completely dis regarded by the learned Single Judge. The learned Single Judge had been impressed by the fact that no counter‑affidavit had been filed but according to the learned counsel, the statements made in the affidavit being hearsay, it was not necessary for the appellant to file any counter‑affidavit to controvert the averments made in the affidavit in support of the application for setting aside the ex parte decree. We may observe this much that from the affidavit of the concerned officer of the respondent Corporation a doubt had been created whether Mr. Abdullah Shah, Advocate was at all free at the relevant time to pursue the cause of the respondent and whether he was at all aware of the fixation of the case on 22nd August, 1977. We also find that in the order, dated 20th October,1982 admitting this appeal it was observed that the learned counsel for the appellant had been given time on 19th October,1982 to ascertain as to whether factually Mr. Abdullah Shah, Advocate was under detention/arrest on 22nd August,1977 and that the learned counsel for the appellant submitted, that on enquiry he had come to know that in fact Mr.Abdullah Shah was not under detention/arrest on 22nd August,1977. By order dated 20th October, 1982, the appellant was directed to file an affidavit on this factul assertion. The record of this appeal shows that no such affidavit has been filed. Although the assertions made in the affidavit in support of the application for setting aside the ex parte decree are not definite about the date on which Mr.Abdullah Shah was supposed to have been taken into detention or arrest and also do not disclose the name of the persons, who gave the information that Mr.Abdullah Shah, Advocate was in detention, the fact remains that these assertions, though general in nature, remained uncontroverted, as no counter‑affidavit was filed on behalf of the appellant. In our view, therefore, the learned Single Judge did not err in accepting the assertions made in the affidavit on behalf of the respondent.

5. Even otherwise, we are of the view that despite the negligence, if any, of Mr.Abdullah Shah, Advocate the facts and circumstances of this case are such that the respondent was not liable to be penalized for the negligence of Mr.Abdullah Shah, Advocate. It has already been noted that till the framing of issues on 10th May,1971, the suit was being properly and diligently attended by or on behalf of the respondent. After the framing of issues the Advocate originally engaged by the respondent migrated to Uganda and in his place the respondent engaged Mr.Abdullah Shah, Advocate, to represent them in the suit. It is also an admitted position, as observed earlier, that from 10th May, 1971 till 22nd August, 1971 no proceedings took place in the suit and 22nd August, 1977 was the first day for regular hearing fixed in Court. It is not a case where the suit had already been fixed on one or more occasions or where the dates were being given from time to time. It is a case where after remaining in cold storage for over six years, the suit was fixed for regular hearing for the first time on 22nd August,1977. It is possible that the respondent inquired about the fixation of the case for regular hearing from their Advocate and they were told that the suit was still not ready for being fixed for regular hearing. If the suit was fixed for the first time on 22nd August,1977, normally the respondent would have come to know about the fixation of the case through intimation by their Advocate. It is in this background of the special facts that the conduct of the respondent is to be judged and in our view, the respondent cannot be held guilty of any carelessness or negligence for their absence on 22nd August, 1977. It is obvious that they were not aware that the suit was fixed on 22nd August,1977. And the facts are such that respondents will. suffer grave injustice and hardship if they are penalized for any negligence on the part of their Advocate. Additionally, the learned Single Judge has exercised his discretion in granting the application for setting aside the ex parte decree. The order being neither perverse nor arbitrary, we are not inclined to interfere.

6. As a result, High Court Appeal No.71 of 1982 is dismissed but with no order as to costs.

M.Y.H. Appeal dismissed.