| Citation(s) |
|---|
| 1969 SLG 207 1969 SLD 207 1969 PLD 270 |
Supreme Court of Pakistan
Civil Appeal No. K-32 of 1965, decision dated: 5th May 1969. (On appeal from the judgment and order of the High Count. of West Pakistan, Karachi Bench, dated the 15th April 1964, in~ Letters Patent Appeal No. 63 of 1964).
HAMOODUR RAHMAN, C.J., SAJJAD AHMAD AND ABDUS SATTAR, JJ
Ibadat Yar Khan, Advocate Supreme Court instructed by M. Yusuf Rafi, Attorney for Appellants. S. A. Nusrat, Advocate Supreme Court instructed by M. Shafiq Ahmad, Senior Attorney Nos. 1 and 2.
Civil Appeal No. K-32 of 1965, decision dated: 5th May 1969. (On appeal from the judgment and order of the High Count. of West Pakistan, Karachi Bench, dated the 15th April 1964, in~ Letters Patent Appeal No. 63 of 1964).
HAMOODUR RAHMAN, C.J., SAJJAD AHMAD AND ABDUS SATTAR, JJ
Ibadat Yar Khan, Advocate Supreme Court instructed by M. Yusuf Rafi, Attorney for Appellants. S. A. Nusrat, Advocate Supreme Court instructed by M. Shafiq Ahmad, Senior Attorney Nos. 1 and 2.
MUHAMMAD HALEEM AND others
VS
H. H. MUHAMMAD NAIM AND OTHERS
Law:
Section:
(a) Civil Procedure Code (V of 1908), O. IX, r. 9 and O. XVII,. rr. 2 & 3-Dismissal of suit for default-"Sufficient cause" for restoration though not susceptible of exact definition and no hard an' fast rule can be laid down yet non-appearance if not intentional' should not be viewed very strictly - Counsel engaged before another Court - Duty -Rules 2 & 3 of O. X III]- Distinction-Evidence in case concluded and matter fixed only for arguments-Provisions of O. IX, C. P. C. not attracted-Proper course, to proceed under r. 3 of O. XVII. 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. When dealing with applications for restoration of matters dismissed for default "weight should be given to the difficulties of counsel who have to appear in more than one cases in different Courts on the same day." The provisions of Order IX of the Civil Procedure Code are not attracted where the evidence had concluded and the matter was fixed only for arguments. The presence of the parties in such a case is not necessary. Submissions had only to be made by the counsel engaged in the case upon the evidence already adduced. The only provisions of the Civil Procedure Code, therefore, which became attracted to such a case would be the provisions of Order XVII. There is a distinction between rules 2 and 3 of Order XVI and it lies in this that rule 2 would be attracted to a. case where the adjournment has been granted generally for one of the purposes mentioned in that rule but where the entire evidence has been recorded and the case is posted only for the hearing of arguments, the more appropriate rule to follow would be rule 3 and not rule 2. The consensus of judicial opinion appears to be in favour of the view that if it is possible for a, Court to base a decision on merits upon the materials already brought on the record, it should proceed under rule 3 of Order XVII and not…
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