MUHAMMAD HABIBULLAH SIDDIQUE Versus Haji HABIB JAFFARALI
1. The present High Court Appeal is directed against the order dated 6-5-1986 passed by the learned Single Judge of this Court in Suit No.159 of 1981, refusing to restore the above suit on file, which was dismissed in default on 20-8-1985.
2. The brief facts giving rise to the present appeal are that the appellant filed suit No.159 of 1981 against the respondents in March, 1981 for declaration, cancellation, return of documents and permanent injunction inter alia alleging therein, that he had taken loan of Rs.3,00,000 from the respondent No.1/defendant No.1 on furnishing title documents of plot No.52 measuring about 2,000 Sq. Yards, situated in 11 Street, Phase V Pakistan Defence Officers Housing Authority, Karachi, on the understanding that on payment of the loan, the title documents of the said plot would be returned to the appellant. It was further asserted that the respondent No.1 by misrepresentation got a letter/agreement purported to be dated 4-6-1979 executed according to which he was authorised to transfer the said plot in favour of his nominee in case of non payment by stipulated date. That the appellant tendered the amount as agreed, but the respondent No.1 avoided to accept the same with mala tide intention to get the said plot transferred in the name of respondent No.2.
3. That the respondents Nos.1 to 3 were served with summons and they filed their written statement, in which they raised various defence pleas. That ultimately the matter was fixed on 20-8-1985 on which date the plaintiff/appellant and his counsel were called absent, and, therefore, the suit was dismissed for non prosecution. The order reads as under:-
4. "Mr.Mohsin Tayebaly, Advocate for the Defendants Nos.1 and 2. Mr.S.Hamid Ali, Advocate for Defendant No.3.
5. None present for the Plaintiff.
6. This suit has been filed in 1981 by the plaintiff. From time to time on behalf of the defendants a statement was made before this Court that the plaintiff was not interested for the prosecution of this suit. It is pointed out by Mr.Mohsin Tayebaly, learned counsel for defendants Nos.l and 2 that on 4-12-1983 an order had been passed by this Court that the parties should be present but the plaintiff did not appear. Again a similar order had been passed on 22-1-1984 but thereafter also the plaintiff did not appear. On 5-2-1984, Mr.Hamid Ali, learned counsel for defendant No.3, had stated that the plaintiff had no interest in the subject-matter of this suit. On this, the Court directed a notice to be issued to the plaintiff to be present in Court when his statement under Order X, Rule 1, C.P.C. would be recorded. It was further observed that the plaintiff should be warned that in case he was absent on that date, ex parte order could be passed against him. Thereafter the case was adjourned on account of a statement that the matter was likely to be compromised. In fact Mr. Mohsin Traceably states at the bar that the plaintiff has not appeared at all since the filing of the suit except once and that was prior to the order dated 4-12-1983. It is further pointed that the suit had been dismissed on 29-2-1984 for default but the suit was restored on 25-4-1984 on payment of Rs.500 as costs. The suit was then again dismissed, according to learned counsel on 13-5-1984, but then it was again restored on 2-12-1984.
7. This case came up before me on 18-8-1985 but the plaintiff did not appear, and the case was adjourned for today with a direction. that the plaintiff should be present in person. Plaintiff and his advocate have been called absent.
8. Suit No. 159 of 1981 is, in the circumstances dismissed for non -prosecution with special costs of Rs. 5,000/-, Rs. 2,500/- of the costs will be payable to the defendants Nos. 1 and 2 and Rs. 2,500/- to defendant No. 3."
9. The appellant filed an application for restoration of the above suit but the same was dismissed by the learned Single Judge on 6-5-1986. The present appeal is directed against the above order dated 6-5-1986.
10. We have heard Mr. Habibur Rehman learned counsel appearing for the appellant, Mr. Mohsin Tayebaly learned counsel appearing for the respondents Nos. 1 and 2 and Mr. S.Hamid Ali Rizvi, learned counsel appearing for respondent No. 3.
11. It was contended by Mr. Habibur Rehman learned counsel for the appellant that in fact the document which has been treated as agreement by the respondent No. 1 on the basis of which he attempted to transfer the plot in suit in the name of his daughter was got signed by respondent No. 1 from the appellant by misrepresentation. That the real dispute between the parties was only regarding the amount which was to be re-paid. That on the day on which the suit was dismissed, it was fixed for framing of issues, and, therefore, the presence of Plaintiff/appellant was not necessary. It was further contended that no notice was served on the appellant as ordered by the Court on 5-2-1984. That thereafter the matter was adjourned twice on the ground that the compromise talks are going on between the parties and there was likelihood of compromise. That in any case looking to the circumstances of the case the learned Single Judge had erred in dismissing the suit by relying on the wrong statement made at the bar, that the plaintiff had never appeared since the filing of the suit except once. That the learned Judge had failed to appreciate that the order dated 20-8-1984 was passed in contravention of the provisions of Order IX, Rule 9, C.P.C., and, therefore, the same is liable to be set aside. That the learned counsel who was appearing for the appellant was negligent and had failed to inform the appellant about the direction of the Court, and, therefore, the appellant could not be penalised. In support of his contention the learned counsel has relied upon Seth Sheivarattan G. Mohatta and another v. M/s. Muhammadi Steamship Company Ltd. P L D 1965 S C page 669, Babu Jan and others v. Dr.Abdul Ghafoor and others P L D 1966 S C page 461, Muhammad Haleem and others v. H.H. Muhammad Naim and others P L D 1969 S C page 270, M/s.Eastern Steel v. Steel Shipping Corporation 1984 C L C page 2778.
12. Mr.Mohsin Tayebaly learned counsel appearing for the respondents Nos.1 and 2 has contended that the present appeal has not been filed against the judgment, and, therefore, this Court has only to see whether the plaintiff and his counsel were negligent in appearing in the Court, and that this Court will not go into respective contentions of the parties regarding merits of the case. That the diary of the case shows that the appellant and his counsel were; negligent in prosecuting the suit, and the suit was first dismissed on 29-2-1982, and was restored to file on 25-4-1984 subject to payment of cost which the appellant failed to pay, and therefore, it was again dismissed on 13-5-1984. However, it was again restored to file on 2-12-1984. On 18-8-1985 the plaintiff was directed to be present in person on 20-8-1985 but neither the plaintiff nor his counsel were present,and therefore, the suit was rightly dismissed. In view of the fact that the suit was dismissed twice before, the plaintiff/appellant should have been vigilant and he could not blame his counsel for non-appearance. In this respect he has relied upon a letter dated 16th November, 1985 sent by Mr.Raja Oureshi, Advocate to the appellant. That the appellant had appeared in the Court after the order regarding issuance of notice against the appellant was passed by the Court, and,- therefore, that ground is not available to the appellant. In support of his contentions he has relied upon Zulfiqar Ali v. Lal Din and another 1974 S C M R page 162, Rafiq Ahmad Khawaja v. Abdul Haleem 1982 S C M R page 1229 Chirag Din and 4 others v. Mst.Jannat Bibi and 6 others 1976 S C M R page 399, M/s.National Bank of Pakistan v. Mst.Parveen Akhtar P L D 1985 Karachi page 60, Muhammad Rahim and 16 others v. Mst. Begum Kaniz Fatima Hayat and others 1986 C L C page 178.
13. Mr.S.Hamid Ali Rizvi learned counsel appearing for the respondent No.3 has adopted arguments of Mr.Mohsin Tayebaly.
14. We have considered the contentions of the learned counsel and have gone through the documents produced alongwith the appeal and the impugned order.
15. So far as the first contention of Mr.Habibur Rehman learned counsel appearing for the appellant was concerned, she. present appeal arises out of the order passed by the learned Single Judge refusing to restore the suit which was dismissed in default of appearance, and therefore, it will not be appropriate to consider the respective contentions of the parties with regard to the merits of the case. It has only to be seen whether the sufficient cause was shown by the plaintiff for his absence acid that of his counsel, in order to justify restoration of his suit.
16. Adverting to the next contention of Mr.Habibur Rehman that no notice was served on the appellant regarding the date fixed on 20-8-1985, as ordered by the Court on 5-2-1984, the diary of the Court shows that even before 5-2 1984 the learned Single Judge had ordered on 4-12-1983 "that the Advocates fur the parties are directed to be present in the Court alongwith their clients on 18-12-1983". Thereafter the suit came up for fearing of C.MA. No.4667 of 1982 and for issues on 22-1-1984 but on this date also the plaintiff and his Advocate were called absent, therefore, the case was adjourned to 5th February, 1984 and the parties were directed to be present as ordered on 4-12-1983. On 5-2-1984 Mr.Raja Qureshi was busy before another Court, while the plaintiff was not present, and therefore, it was ordered that notice be issued 'o the plaintiff to be present in Court on 19-2-X984 when his statement under Order X, Rule 1, C.P.C. would be recorded. Mr. Raja Qureshi and the plaintiff appeared before the Court on 19-2-1984 and the case was adjourned by consent, on the ground that there was likel-hood of compromise as stated by the counsel of the parties. On 21-2-1984 the case was again adjourned and plaintiff was directed to appear in person in the Court on that date, and in case there is any compromise between the parties it should on that date. On 29-12-1984 the plaintiff and his counsel were calls absent and, therefore, the suit was dismissed for non-prosecution. Again on 16-4-1984 when the learned counsel appearing for the plaintiff had to file further affidavit, the plaintiff and his Advocate were absent and no affidavit was filed. From the above case diary it is clear that plaintiff had appeared before the Court on 19-2-1984 after directions from the Court on 15-2-1984, therefore, the contention of Mr.Habibur Rehman that plaintiff was not served with the notice was untenable.
17. As far as the question of absence of plaintiff and his counsel on 20-8-1985 was concerned the diary dated 18-8-1985 shows that the case was fixed for hearing of C.MA. No.4667 of 1982 and also for issues, the plaintiff was called absent, while Mr-Raja Qureshi was busy in some Election Petition, and therefore, the case was adjourned to 20-8-1985 for issues and also for hearing of the application. It was ordered that the case will be taken up at 8.30. a.m. sharp on 20-8-1985. The plaintiff should be present in person. On 20-8-1985 the plaintiff and his Advocate were called absent, and the learned Single Judge while looking to the background of the case and the conduct of the plaintiff dismissed the suit. On 18-9-1985 an application for restoration of the suit was filed in which no grounds were mentioned nor it was supported by any affidavit. However, the plaintiff/appellant filed his affidavit in Court on 26-1-1986 in which he has made allegations against Mr. Raja Qureshi regarding his negligence to inform him about the dates of hearing. The affidavit further shows that the plaintiff/appellant was not informed by Mr.Raja Qureshi about the dates of hearing fixed on 18-8-1985 and 20-8-1985. It was only on 20-1-1986 that when he went to the office of this Court, he was informed by clerk that the suit was dismissed on 20-8-1985 for non-prosecution. It was further stated in the affidavit that he was not negligent and his absence was neither intentional nor deliberate. He had also 'produced a letter dated 16th November, 1985 sent to him by Mr.Raja Qureshi.
18. The respondent No.1 Haji Habib filed counter-affidavit in which he has given the background of the case, and the negligence shown by the plaintiff/appellant in prosecuting the case. He has also denied the factual contentions raised by the appellant in his affidavit that on several occasion this Court had required the presence of the appellant arid it was unblievable that the counsel of the plaintiff had riot informed him that his presence was required. That on 19-2-19134 the plaintiff was present in Court alongwith the counsel and was fully aware that his presence on each date of hearing was required in terms of the orders of this Court. That suit was dismissed twice before, on one occasion the plaintiff had to pay cost for restoration but still he remained negligent and therefore, no sufficient cause was shown for the restoration of the suit.
19. As far as the decisions relied upon by the learned counsel appearing for the appellant are concerned, in the case of Seth Shivrattan G.Mohatta and others v. M/s.Muhammadi Steamship Co. Ltd. P L D 1965 S C page 669, the suit of the plaintiff was dismissed in default of appearance and the order was reversed in L.PA. by the L.PA. Bench, as it found that the counsel for the plaintiff had been negligent in prosecution of the suit, but thought it would be wrong to make the plaintiff suffer on account of his professional misconduct. The Supreme Court, while hearing the appeal against the said order of the L.PA. Bench concurred with L.PA. Bench, and further observed that there were other sufficient and good reasons for restoration of the suit.
20. In the case of Babu Jan Muhammad and others v. Dr.Abdul Ghafooe and others P L D 1966 S C page 461 it was observed that:-
21. "Again the fact that this was second occasion on which they were asking for restoration of their suit which had been dismissed for default could hardly be of weight in determining the merits of their second application for restoration. It was further observed that determination of sufficient cause is a matter within the discretion of the Court, to be exercised judicially in relation to all the circumstances of the case. That the learned Advocate had gone to attend the High Court and this was not the only reason for restoration but it was further explained that his clerk had tried to estimate the probable time at which the suit was likely to be called, and had left himself what he thought was reasonable margin to fetch the lawyer from the Court, where he knew that he would be present. His judgment proved wrong and before he could reach the Court with the learned Advocate the suit was dismissed, and therefore, the suit was restored to file. With utmost respect, the facts of the above case are distinguishable inasmuch as in the present case the plaintiff as well as his counsel were absent. There was no affidavit filed by the learned counsel appearing for the plaintiff/appellant, and the affidavit filed by the plaintiff clearly shows that he himself was also negligent in prosecuting the case".
22. In the case of Muhammad Haleem, a Miscellaneous Application under section 247(6) of Companies Act, 1913 was dismissed in default by a learned Single Judge of this Court. Letters patent appeal was filed against the order of dismissal but the same was also dismissed by a Division Bench of this Court. The appellant filed a petition before the Hon'ble Supreme Court and the miscellaneous application was restored to file with the following observations:-
23. "The main reason which has compelled us to allow this appeal is the fact that, in our view, the High Court had not exercised its discretion on sound judicial principles in dismissing the matter for non-prosecution. It should have proceeded under Order XVII, Rule 3, C.P.C. and directed that since the learned counsel for the petitioners was not present, his argument must be taken as closed, then called up the learned counsel for the respondents to address the Court and given a decision on the merits of the case. We, therefore, feel that this appeal should be allowed, for, otherwise it would result in inflicting a very harsh penalty upon the parties for no fault of their own. At the same time, however, we wish to record our disapproval of the conduct of the Attorney concerned by directing that the costs of this appeal, both of the petitioners and the respondents, should come out of his pocket, but since there are several respondents in this appeal, the respondents will be allowed only one set of costs".
24. In the above case the evidence had already concluded and the matter was fixed only for arguments, and therefore, with utmost respect the present case is distinguishable.
25. In the case of M/s.Eastern Steel the suit was decreed ex parte, and an application was filed for setting aside the ex parte decree which was allowed and suit was restored to file, as the suit was fixed for regular hearing for the first time after six years. That the Advocate who was originally engaged by the defendant migrated to Uganda, and at his place another Advocate Mr. Abdullah Shah was engaged. The application was supported by an affidavit but no counter-affidavit was filed, and therefore, the suit was restored to file. An appeal was filed before a Division Bench of this Court but the same was dismissed on the ground that till framing of issues the suit was properly and diligently attended to by and on behalf of the respondent. The affidavit filed by the respondent/defendant in support of his application showed that his Advocate MrAbdullah Shah was under detention and this was not controverted by the other side. It was further observed that the order setting aside ex parte decree, was discretionary and it was neither perverse nor arbitrary, and therefore, the interference was declined.
26. On the other hand so far as cases relied upon by Mr.Mohsin Tayebaly are concerned, in the case of Zulfiqar Ali v. Lal Din and another 1974 S C M R page 162 it was observed that:-
27. "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 m his sense of responsibility to the Court, it is he who should suffer and not the other side."
28. In this case, the case of Shivarrtan was also considered.
29. In the case of Chirgah Din and 4 others v. MstJannat Bibi and 6 others 1976 S C M R page 399 it was observed by their Lordships of the Supreme Court that:
30. "To have briefed an advocate on record did not absolve the petitioners of their obligation to appear and to ensure that their case is properly conducted, and therefore, the application to restore the petition was dismissed although on additional ground of merits as well".
31. In the case of Rafiq Ahmed Khawaja v. Abdul Haleem 1982 S C M R page 1229 it was observed by their lordships of the Supreme Court that:
32. "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. Since 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, therefore, while relying upon the cases reported in 1974 S C M R page 162 and 1976 S C M R page 399, the appeal was dismissed."
33. In the case of M/s. National Bank of Pakistan v. Mst.Parveen Akhtar P L D 1985 Karachi page 60 it was observed by a Division Bench of this Court that:
34. "It has been repeatedly pointed out by the superior Courts in our country that it is the duty of a party to litigation to keep himself informed of the proceedings and progress of the case by keeping in touch with his counsel and if the counsel is negligent, it is he who should suffer", and therefore, the order by which the learned Single Judge of this Court refused to restore the execution applications which were dismissed in default was not interfered with".
35. In the case of Muhammad Rahim and 16 others 1986 C L C page 178 the same view was taken by a Division Bench of this Court.
36. In view of the above factual as well as legal position it is clear that the appellant was himself negligent. Even letter of Mr.Raja Oureshi produced by him clearly shows that the appellant was negligent and had failed to attend the Court in spite of the intimation given to him by his counsel. In the present case no affidavit has been filed by the Advocate nor his absence has been explained. The appellant was directed to appear in the Court as his statement was to be recorded under Order X, Rule 1, C.P.C, and therefore, the absence of the counsel as well as the plaintiff/appellant had to be explained. The allegation of the plaintiff/appellant that his counsel was negligent could not absolve him of his obligation to appear to ensure that his case was properly conducted.
37. In view of the above circumstances we are of the considered view that the learned Single Judge had rightly refused to restore the suit on file and order does not call for interference. The appeal is accordingly dismissed.
38. AA./M-468/K Appeal dismissed.