EVEREADY PICTURES (PVT.) LTD. Versus INDUSTRIAL CHEMICALS (PVT.) LTD.

ORDER

1. This is an appeal directed against the orders passed on 24‑10‑1987 and 14‑4‑1988 respectively in Rent Case No. 523/1986, passed by VIIth Controller,‑ Karachi, (South), whereby, he dismissed the abovementioned rent Case. for non‑prosecution and also dismissed the appellant s application for setting aside the order of dismissal.

2. The facts of the case are that the present appellant had filed the said rent case seeking the ejectment of the respondent under section 15 of the Sind Rented Premises Ordinance, 1979. It is asserted that the appellant is the owner/landlord of the building known as Eveready Chambers, situated on Survey No.10/4, Sheet RY‑9, Railway Quarters, Muhammad Bin Qasim Road, Karachi, and that under a lease‑agreement dated 19‑2‑1970, the said premises (tenement No.6, comprising of two rooms, measuring. 1,700 square feet of the second floor) was let out to the respondent for the period of 11 months extendable for further period of 11 months at the option of the respondent, which was being extended from time to time. It is, however, alleged that the respondent failed to pay the monthly rent for February, 1985, and thus committed default and also that for the subsequent months the rent was not paid on due dates, and that finally on 9‑5‑1985, the respondent purported to send its cheque for Rs.5,180 being the rent of aforesaid rented premises for the months of February to May, 1985, which the appellant had refused to accept as the respondent was a defaulter, which was to the knowledge of the respondent and in spite of that he did not deposit the same in Court or tendered by any other means. Again another cheque dated 4‑6‑1985 was sent by the respondent being the rent for the months of February to June, 1985, which was also refused and again on 7‑7‑1985, another cheque for Rs.7,770 was sent being the rent for the period from February to July, 1985 and after that no more cheques were sent and therefore, the rent case for ejectment was filed, mainly on the ground of default. The respondent contested the rent application and filed their written objections and the matter was then adjourned for filing of affidavit in evidence of the appellant and the hearing was fixed on 9‑7‑1986 and the matter was being adjourned from tune to time at the request of the Advocate for the appellant till 7‑1‑1987, on which date, the rent case was dismissed for non‑prosecution . The appellant s Advocate on 9‑2‑1987 moved an application for setting aside the dismissal order and the Rent Controller vide his order dated 2‑5‑1987 set aside the above-said order and directed the appellant to file affidavit in evidence and the case was adjourned to 11‑5‑1987, for the said purpose. Again on 11‑5‑1987, the counsel for the appellant moved an application for time to file the affidavit in evidence on the ground of serious inability of appellant s attorney to file the same. The case was adjourned to 16‑5‑1987, when again the appellant s counsel made an application for adjournment on the ground that appellant s office was closed due to death anniversary of their Managing Director and at his request the case was adjourned to 17‑5‑1987, on which date the affidavit in evidence was filed and the case was adjourned to 23‑5‑1987 for his cross‑examination. From which date, the case was adjourned to 23‑7‑1987 and then adjourned to 13‑8‑1987. On . which date, again an application for adjournment was sent by the Advocate for the appellant on the ground that his witness could not attend the Court being sick. The adjournment was granted and the case was adjourned to 12‑9‑1987, from which date it was again adjourned to 22‑9‑1987 and then to 13‑10‑1987 and 24‑10‑1987 at the request of the appellant s Advocate. However, on 13‑10‑1987, it was observed by the trial Court that no further adjournment would be granted. On 24‑10‑1987, the appellant and his counsel being absent, the case was dismissed for non‑prosecution. The appellant s counsel moved an application under Order IX, Rule 4, C.P.C., for setting aside the order of dismissal, which was contested by the respondent and the Rent Controller after hearing the Advocates dismissed the sane by the order dated 14‑4‑1988. These two orders are impugned in the present appeal.

3. Pre‑admission notice was served on the respondent, who have appeared and filed their objections.

4. I have heard the Advocates for the parties at length. Mr. Khalid Latif, Advocate, appearing for the appellant has submitted that the application for setting aside the order of dismissal was made on. the very next date of the dismissal which shows his vigilance. While explaining the reasons for delay, his contentions as given in his affidavit filed alongwith the application under Order IX, Rule 4, C.P.C. are that on 24‑10‑1987, the witness had developed a sudden deterioration in his condition during the early hours of the morning and he could not get in touch with his Advocate to inform him about his inability to attend the Court and further that the Advocate had called Mr. Abdul Ghaffar, an employee of the appellant and asked him to be present in Court and inform the Court if the case was called in his absence. He has further stated in his affidavit that he had met the clerk of the Advocate of the respondent and told him that in case the witness would not be present then he would seek adjournment. As regards his personal absence he has said that he was busy in the High Court of Sind on the said date with the work of the Chamber of Commerce. tie has further contended that the respondent in the counter‑affidavit has not denied these facts. Mr. Ikram Ahmed Ansari, Advocate, appearing for the respondent has contested the above contentions and has shown from the record that the said application, although dated 25‑10‑1987 was moved in the Court on 14‑11‑1987. He has further argued that it was necessary for the appellant to have filed the affidavits of the witness and the said Abdul Ghaffar and he should have also filed the medical certificate. Mr. Ansari has further stated that 24‑10‑1987 was Saturday, a date or which there is no Court sitting in the High Court and that the Advocate owes a greater responsibility to the Court than to the Chamber of Commerce.

5. This application moved under Order IX Rule 4, C.P.C., should have actually been moved under Order IX, Rule 9, C.P.C. However quoting the wrong rule would not disentitle the appellant but it would be the substance and the prayer made in the application that would be considered. His prayer is for setting aside the order of dismissal and it will be useful to re‑produce the provisions of Order 11, Rule 9, C.P.C., which read as under:‑

9. Decree against plaintiff by default bars fresh suit‑‑ (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non‑appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite‑party. The above rule lays down that the party has to show sufficient cause for the non‑appearance in order to get the ex parte order or order of dismissal set aside. Such order can be set aside if sufficient B cause was shown and the various principles have been laid down by this Court in the case of Joint Secretary, Ministry of Religious and Minority Affairs and 2 others v. Mobina Begum 1985 C L C 231 at paragraph 19 of the judgment which are as under:

19. However, the broad principles which can be deducted from the above judgments, more particularly of the Supreme Court, may be summarised as below:‑

6. (a)The matter dismissed for default can be restored or ex parte decree. set aside.‑‑‑

(i) Even without payment of costs if there is no negligence of the party and its counsel and the circumstances are such that there was show sufficient cause for their non‑appearance.

7. (ii)On payment of costs, in appropriate cases, if the unintentional negligence is that of the counsel and not that of the party.

8. (b)That matter cannot be restored or ex parte decree set aside if the party and its counsel or any one of them have been grossly negligent in pursuing the matter.

9. From the contentions of the Advocate for the appellant and his own affidavit, I find that it was necessary for him to have file the affidavits of his witness Mr. M.A. Manzoor and the said Abdull Ghaffar to substantiate his contentions. No plausible excuse has been given for the non‑appearance of the said witness and no explanation has come on record as to why the said Abdul Ghaffar was not present; at the time when the case was called. All that is said in paragraph of the affidavit is that the aforesaid Mr. Abdul Ghaffar did attend this Honourable Court. But it seems that the applicant s name was not called out outside the court room and therefore he could not intimate this Honourable Court as stated above in para. 3 . It will be seen that it is not a definite statement but a mere surmise which is not supported by Abdul Ghaffar as he has not filed any affidavit.

10. The Advocate for the appellant has further pointed out to an document application made by him earlier on 21‑10‑1986 in order to show that the Advocate had personal knowledge of illness of the witness and therefore, his personal affidavit to this effect should have been accepted by the Rent Controller. I am afraid this will not help the appellant as this application was made one year before the impugned order and subsequent to this application the affidavit in evidence has been filed which shows that M.A. Manzoor was very much present in Pakistan, and it was M.A. Manzoor who had to be cross‑examined.

11. The Advocate for the respondent repelling the above contentions has submitted that no sufficient cause for the non‑appearance of the party, witness and the Advocate for the appellant has been shown and as such the order of the learned Rent Controller was quite proper and in accordance with the long line of decisions given by the Honourable superior Courts. He has further contended that this is a clear cut case of negligence on their part and they would not be entitled to restoration as prayed. He has placed reliance on Mst. Shirin Begum v. Habib Bhai 1988 SCMR 670, Shahid Hussain v. Lahore Municipal Corporation PLD 1981 SC 474 and Haji Muhammad Sharif v. Settlement and Rehabilitation Commissioner and others 1975 SCMR 86.

12. From the above discussion it is obvious that the appellant has been negligent in pursuing his case as he was required to be in the knowledge of various stages in the case and to prosecute the same with due diligence. Not only the appellant but his attorney Mr. M.A.

13. Manzoor and their employee Abdul Ghaffar have also been negligent.

14. For the above reasons, I find no substance in the present appeal, which is dismissed in limine.

15. H.B.T./E‑20/K. Appeal dismissed.