MUHAMMAD SIDDIQUE Versus DARA GOTLA
ORDER
1. By this application under Order XLI, Rule 11 read with section 151 C.P.C. the appellant prays for the restoration of the above appeal for re‑hearing. It is supported by the affidavits of the appellant and Syed Muhammad Afzal Mahmud, the counsel for the appellant.
2. The appellant's appeal was dismissed for non‑prosecution on 18‑1‑1988 This application has been presented on 19‑1‑1988. In his affidavit , Syed Muhammad Afzal Mahmud, the learned counsel for the appellant, has disposed that on 9‑1‑1988 he checked the weekly list in the Library for regular cases fixed" in the week commencing from 70‑1‑1988 and ending on 14‑1‑1988. He also confirmed from the Roster Branch that the above appeal was fixed for hearing on 21‑1‑1988. Again on 16‑1‑1988 he came to the Library and re‑checked the weekly list and found it in accordance with the information already available with him. On 18‑1‑1988 at about 1.30 p.m. the appellant informed him on phone that the appeal had been dismissed on that day. He directed the appellant to go to the Court and find out, who later informed him at about 3:00 p.m. on the same day that the matter was actually dismissed for non‑prosecution. He made enquiries on 19‑1‑1988 and came to know that it was got adjusted, without any notice to him or to the appellant. He further averred 'that normally while seeking adjustment we .take no objection of the advocates appearing for other side or 'at least infer them personally or by telephone. He submitted that my telephone number appears on the Vakalatnama but I was not informed, therefore, I or the appellant had no knowledge :whatsoever that the case was to be called earlier than expected, the same being fixed on 21‑1‑1988 as per page of the list attached. It is submitted that the appellant and myself had been diligent tfir6ughout and our absence was absolutely unintentional.' Muhammad Srddiq; the appellant, in his affidavit has deposed the fact of his having come to know of the 'dismissal of the appeal on 18‑1‑1988 as stated in the affidavit of his counsel. He further deposed that upon being directed by his Advocate he rushed to this Court and came down to Roster wherefrom he was directed to go to the Court of.Dr.Mr.Justice Tanzil ur‑Rahman where he learnt that the date of hearing was ante‑dated to 18‑1‑1988 of which neither he nor his Advocate had any notice. The respondents 11e contested the said application by filing the counter‑affidavit of one Sohrab s/o Ahmedullah Khilji, the Attorney and Manager of the respondents Nos.2 and 3 to the above‑noted two affidavits. He denied that he had informed the appellant on 18‑1‑1988 or any other date that his appeal has been dismissed and/or that he gone to the shop of Bashir as stated in the affidavit of the appellant. He also deposed that the Advocate for the respondent No.2 got adjusted the tentative weekly list so as to get the hearing of the above appeal fixed on 18‑1‑1988 and this adjustment was notified/circulated in the daily cause list on 14‑1‑1988. He further deposed that on 17‑1‑1988 the appellant had himself visited the office of Roster and met with the clerk of Mr.Ishtiaq Ali, Advocate for the respondent No.3, namely, Zafar Alam. The appellant was told by the clerk that the matter was fixed for 18‑1‑1988 and a copy of the cause list was also shown to him. The appellant also got a copy of cause list dated 18‑1‑1988. It was, therefore, asserted that the appellant had intentionally and willingly failed to appear on the date of hearing with the intention to prolong the litigation. An affidavit of Zafar Alain, Clerk of Syed Ishtiaq Ali, Advocate for respondent No.3, has also been submitted wherein he as deposed that on 17‑1‑1988 he found the appellant in the Roster Branch where he was making enquiries whether the above appeal was, fixed or not for hearing on. 18‑1‑1988. He also made the same enquiry from him and that he informed‑him :that the case had been fixed on 18‑1‑1988 before Mr.Justice Dr.Tanzil-ur-Rehaman and that he also showed the cause list of 18‑1‑1988 to the appellant‑ who also got a copy thereof and then went away from the Roster Branch. Muhammad Siddique, the appellant filed his counter-affidavit to the affidavit of War Alam, clerk, denying the various allegations made therein with regard to his having met him. He further deposed: "It is false and denied, no body met me in the Roster Branch except the staff on 16‑1‑1988, i.e. Saturday when I went to re‑cheek the .date. In fact I never visited the Roster Branch on 17‑1‑1988".
3. I have heard the learned counsel for the appellant as well as of the respondents Nos.2 and 3. The learned counsel for the appellant submitted that the non‑appearance of the appellant and of his counsel on 18‑1‑1988 was not intentional as explained in his affidavit as well as in the affidavit of the appellant filed in support of the application for restoration of appeal. He vehemently urged that in the circumstances of this case the appellant has shown sufficient cause for re-admission of the appeal inasmuch as the appellant or his, counsel did not have any information about the ante‑dating of the date of hearing of the appeal from 21‑1‑1988 to 18‑1‑1988. He emphasised that it was obligatory on the part of the learned counsel for the respondent No.2 to inform him about the change of date as is the usual practice and his failure to do so prevented him and the appellant front putting in appearance on 18‑1‑1988. He also submitted that non -appearance, if not intentional, should not be viewed very strictly as held by the Supreme Court in the case of Muhammad Halim and others v. H.H. Muhammad Naeem and others P L D 1969 S C 270. He also placed reliance on the authorities reported in P L D 1965 S C 669 and P L D 1966 S C 461.
4. Mr.Mansoorul Arfin, learned counsel for the respondent No.2, vehemently opposed the application. He submitted that it is misconceived inasmuch as the provisions of Order XLI, Rule 11, C.P.C. do not apply to the rent proceedings. He further maintained that notwithstanding the fact that this appeal, per weekly list which was tentative. was fixed for hearing on 21‑1‑1988 but later on, on the application of the respondent No.2 made within the time allowed by the relevant rules of the High Court, it was adjusted to 18‑1‑1988. He submitted that an 'Adjustment List' was duly placed on the notice board and it was also laced in the Library as well as in the office of the Bar Association. He, therefore, urged that if the appellant does not go and consult the revised list it is his fault and he cannot now plead ignorance. Relying upon the decision of the Supreme Court reported in 1978 S C M R 288 the counsel contended that it was the duty of the counsel for the appellant to verify the position of the appeal from the weekly cause list, and also from daily cause list. The failure on the part of the counsel for the appellant as well as the appellant clearly indicates that they were not vigilant in pursuing the appeal. In this connection he also referred to a decision of a Division Bench of this Court reported in P L D 1981 Kar. 645. The counsel, therefore, urged with vehemence that negligence is negligence and it is immaterial whether it is intentional or grave.
5. Mr.S.Ishtiaq All, learned counsel for the respondent No.3, also adopted the arguments of Mr.Mansoorul Arfin. Additionally he invited my attention to the contents of the counter‑affidavit of the appellant wherein it is deposed that on 1 6 1‑1988 he had gone to the Roster to check the cause list. He, therefore, 1 emphasised that it was, therefore, well within his knowledge that the case was fixed on 18‑1‑1988 inasmuch as the adjustment was made by the learned counsel for the respondent No.2 was duly placed on the notice board as per list of "adjustment" circulated with the daily list of Appellate Side for 14‑1‑1988.
6. To begin with, I would like to reproduce hereunder the principle laid down by Supreme Court in Muhammad Halim v. H.H.Muhammad Naeem P L D 1969 S C 270:‑
7. "It has been laid down by this Court that although 'sufficient cause' is not susceptible of an exact definition and no hard and fast rule can be laid down to cover all possible cases, yet where the non‑appearance is not intentional and the counsel or his client has made genuine efforts or taken reasonable precautions to be present at the hearing, a very strict view should not be taken."
8. From the facts elaborately recorded above and upon perusal of the averments made by Mr.S.MA.Mahmud, learned counsel for the appellant, in his affidavit on‑record, I am convinced that he has succeeded in showing sufficient cause for his non‑appearance as well as non‑appearance of the appellant on 18‑1‑1988. The counsel has deposed and also stated at the Bar that despite being a Member of the High Court Bar Association, for the last one year, there is no existing arrangement for delivery of the list at his residence and hence he personally checks all the weekly lists and keeps all regular cases through such lists apart from other Court work on each Saturday of the week. He has further deposed that he actually checked the weekly list in Library on 9‑1‑1988 for regular cases fixed in the week commencing from 10‑1‑1988 and ending on 14‑1‑1988. He noted that the above appeal was fixed for hearing on 21‑1‑1988. He has also stated that be again came to the Library on 16‑1‑1988 and rechecked the weekly list and found it was in accordance with the information already available with him. The adjustment of date done at the instance of the learned counsel for the respondent No.2 was unfortunately not noted by him as circulated vide Adjustment List on 14..1‑1988. It may be said to be negligence of the counsel of the appellant but it is, in my opinion, neither intentional nor so grave as to justify the refusal of the re admission of the appeal. The fact that the appellant had been vigilant in pursuit, his case is also evident from the contents of his affidavit and counter‑affidavit. It is a different aspect that despite having come to the Branch on 16‑1‑1988 he could not also get the requisite information that the case was listed on 18‑1‑1988 instead of 21‑1‑1988 as originally fixed vide tentative weekly list for the week commencing from 17‑1‑1988. As already pointed out, even the learned counsel for the appellant had on that day come to the Court yet he also could not get the requisite information. The cases cited at the bar, I find, are distinguishable on their own facts.
9. Before parting with the case I may observe that the objection taken by the learned counsel for the respondent No.2 regarding the maintainability of the application under Order XLI, Rule 11 is misconceived. The request can be entertained under section 151, C.P.C. The affidavits filed on behalf of respondent are, in my opinion, not confidence inspiring.
10. In the result, the application is allowed and the appeal consequently stands restored.
11. M.Y.H./M‑499/K Petition allowed.