NABI BAIQISH Versus MUHAMMAD ASLAM
This judgment shall dispose of RSAs Ncz. 707/71 and 708/71 which are between the same parties and involve similar questions of law and facts. It shall, however, remain on the file of RSA No. 707/71.
2. The appellants instituted two pre‑emption suits against the respondents but these were dismissed by the learned trial Court. They challenged the dismissal, through two separate appeals, before the learned District Judge, which on 10‑12‑1969, were adjourned to 13‑1‑1970. As on this date, neither the appellants nor their learned counsel entered appearance, the appeals were dismissed in default. On 17‑1‑1970, they applied to the learned District Judge for re‑admission of the appeals, on the ground that according to their information, on 10‑12‑1969, the case was adjourned to 17‑1‑1970 and their learned counsel noted the same date in his diary and on the envelop (file). That when on 17‑1‑1970 they came to the Court to pursue the appeals, it transpired, that these were enlisted for 13‑1‑1970 and dismissed for non‑prosecution. In the application, it was further pleaded that the appellants' and their counsel's absence was not intentional.
3. On 2‑1‑1971 the learned District Judge by two identical orders, the operative part whereof is reproduced below dismissed the applications:‑‑
"The envelopes maintained by the learned counsel for both the parties have been produced which vindicate the stand of each of them. This Court pronounced 1.3‑1‑1970 as the date of hearing and it was duly noted by the learned counsel for the respondents. I fail to understand as to how the appellants had misapprehended the said date. 'Their appeal pertains to possession by pre‑emption and pre‑emption suits are classed as predatory ones. They cause a set‑back on the freedom of contract and the security of title. I see no ground to restore this appeal and dismiss this petition."
The appellants have now come to this Court.
4. The appeals have been preferred under section 100 C.P.C. which has no application. The order refusing the re‑admission of an appeal is appealable under clause (t) of Rule 1 of Order XLIII, C.P.C. These appears are therefore, treated as F.A.Os.
I have heard the learned counsel for the parties and examined the record. On behalf of the respondents, their learned counsel has sought setting aside of the impugned orders on the plea that the appellants' counsel did not produce his diary before the learned Court below, and there was no evidence to establish the sufficiency of the cause for restoration of the appeals.
It is correct that according to the record, on 10‑12‑1969 the appeals were adjourned to 13‑1‑1970 in the presence of the counsel for the appellants. But the Appellants contention is that their counsel suffered misunderstanding of the date of hearing; laboured under the motion that the case was adjourned to 17‑1‑1970 and noted the same date in his diary and on the envelope. True enough, the impugned order makes mention of the production, of only the envelop and not tire diary, by the counsel, before the learned first Appellate Court, but the applications were neither rejected nor could have been rejected for such am Omission. It is discernible from the impugned order that what heavily weighed with the learned District Judge in refusing the applications was, that the appear,‑Pertained to pre‑emption suits, which are classed as predatory ones. Otherwise the appellants' version, found ample support froth the entry of the date of hearing recorded on the envelope, by his learned counsel. In restoring the cases, dismissed in default, there is no taw, to apply a different yardstick to pre‑emption cases. Indeed in this behalf, the primary consideration, which prevailed with the learned District Judge in refusing the applications is, altogether irrelevant. The criterion should have been as to whether or not, there was sufficient cause for restoration of the appeals. No precise and exact definition of the terra "sufficient cause" can be given and each case has got to be decided upon its own facts. There, is however, ample authority for the view that law favours adjudication on merits and if the negligence on the part of the appellants or his counsel, is not proved, the appeal should be restored.
7. As regards the evidence, the record shows that the learned District Judge did not give any opportunity to the parties to produce evidence. The suits giving rise to these appeals were filed in the year 1967. Even these appeals have been listed for hearing after a period of about 13 years. I am, therefore, not inclined to demand these cases to the learned first Appellate Court for re‑adjudication of the applications under Order XLI, Rule 19, C.F.C., after recording evidence. It is, however, to be noticed that the averments made in applications are supported by "Appellants' affidavit. There is do counter‑affidavit of the respondents. I am, therefore, persuaded to give weight to the unrebutted affidavit of the appellants. In such like cases, a very strict view as to "sufficient cause" need not be taken. There is no finding of the appellants' or their counsel's negligence. Even if in their absence, there was some element of negligence, the respondents could have been compensated, in costs, for the inconvenience undergone by them. From the perusal of the record I am satisfied that there was sufficient cause for restoration of the appeals and the learned District Judge fell in error in dismissing the applications. The orders under appeal, therefore, cannot be upheld.
8. For the foregoing reasons these appeals are accepted and the orders passed by the learned District Judge set aside. The appellants' first appeals are restored which shall be disposed of on merits. The respondents' costs in these appeals, however, shall be borne by the appellants.
3419/L Appeals accepted.