ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Execution No.69 of 2008
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DATE ORDER WITH SIGNATURES OF JUDGE(S)
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1. For hearing of CMA 310/18
2. For hearing of CMA 311/18
Dated: 03.10.2018
Mr. Mushtaq A. Memon along with Mr. Asif A. Memon for decree holder.
Ms. Heer Memon for judgment debtor.
Mr. Kh. Muhammad Farooq for applicant/objector.
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Zulfiqar Ahmad Khan, J.- This restoration application is made under Order IX Rule 9 read with section 151 CPC (CMA No.310/2018) for setting aside order dated 29.08.2018 in terms whereof CMA No.788 of 2009 of the applicant/objector was dismissed on account of non-prospection.
The background of the instant application is that the counsel of M/s Millennium Financial Services (SMC-Pvt) Ltd. filed objections with regard to a property described as No.6, Mauve Area, G-8/1, Islamabad, in the instant execution proceedings alleging that the said property was sold to them for valuable consideration before the grant of the decree. The objections were filed in the form of application under section 19(7) of the Financial Institutions (Recovery of Finances) Ordinance, 2001.
Admittedly, the counsel for the applicant/objector travels from Islamabad. Per counsel the objectors have appointed himself as well as his associate Ehsan Ahmad G. Khawaja who had been appearing on behalf of the objector on various dates and had argued the matter from time to time.
On 06.10.2015, after observing that the counsel for the applicant/objector was not in attendance and as he comes from Islamabad, by way of indulgence and last chance, the case was adjourned to 27.10.2015 with note of alert that if on the next date of hearing counsel for the objector fails to appear and to proceed the application, the application will be dismissed for non-prosecution. Office was directed to issue intimation notice to the learned counsel for applicant/objector for 27.10.2015. On 27.10.2015 where Mr. Ahsan Ahmed Khawaja, counsel for the objector effected appearance, the matter was partly heard and was adjourned to 23.11.2015. On 24.02.2016 a brief was held for Mr. Khawaja Muhammad Farooq and request was made that since he comes from Islamabad, the matter be adjourned. Similar was the case on 12.08.2016. On 17.11.2016 counsel for the objector was present and the counsel for decree holder was not present. On 17.11.2016 also as well as on 06.12.2016 counsel for objector was present and counsel for decree holder was absent and thus the matter was adjourned. Similar was the case on 14.02.2017 as well as on 15.03.2017. However, on 07.09.2017 a request was made by the counsel for the objector that on account of his appearance before Hon’ble Supreme Court, the matter be adjourned to 03.10.2017 and when the matter was called on the said date the counsel was present and a brief was held for the counsel for the decree holder.
On 15.02.2018 Mr. Mushtaq A. Memon took over the representation on behalf of the decree holder and the matter was adjourned for 21.03.2018 when Mr. Memon was present, however a brief was held for Mr. Khwaja on account of his preoccupations in the Hon’ble Supreme Court at Islamabad, whereafter the matter came up on 26.04.2018 when a brief was held for Mr. Khawaja as he was reportedly unwell and was unable to fly from Islamabad. On which day the matter was adjourned by way of final chance with caution that if counsel for the objector fails to appear before this Court or proceed with the application for any reason, the objector was to make alternate arrangement, however in no circumstances the matter shall be adjourned for a further date of hearing. On the following date being 22.05.2018 Mr. Khawaja was present and stated that he had not received copy of counter-affidavit filed by the decree holder, the matter was adjourned for 16.08.2018 when none affected appearance on behalf of the objector and office was directed to issue notice directly to the objector as well as intimation to his counsel for 29.08.2018. When the matter came up on the said date by referring to the two orders dated 06.10.2015 and 29.08.2018, due the absence of the counsel for the objector, his application was dismissed on account of non-prosecution whereafter on 17.09.2018 the counsel for the objector appeared and moved instant restoration application, stating that he was present on the fateful date in the Court premises but was waiting in a different Court as the matter was previously fixed before a different Hon’ble Judge with a similar name in whose Court he was present (i.e. he was waiting in the Court of Mr. Justice Faisal Kamal Alam while the matter was fixed before Mr. Justice Agha Faisal) and when his matter did not come till break time, he made inquiries about his case when he was informed by a colleague advocate that his case was in fact fixed before Mr. Justice Agha Faisal who had adjourned the same. Learning this, the counsel states that he left the Court and took the flight to Islamabad in the afternoon, however upon reaching Islamabad when he checked the result of the case online, he came to know that the same has been dismissed on account of non-prosecution, hence this application.
Learned counsel states that the objectors were represented by two counsels being himself and his associate Mr. Ehsan Ahmad G. Khawaja and one of them had been present on most of the dates. In the grounds it is stated that on the fateful date the counsel had come to Karachi through Serene Airline. He has attached copies of the ticket and copies of his accommodation at Pearl Continental Hotel, Karachi, dated 29.08.2018. Invoice of hotel is in his name. Learned counsel states that on account of confusion between the names of the Hon’ble judges, he waited in the different Court while his case was dismissed on account of non-prosecution by a different Bench. He states that his absence was neither deliberate nor outcome of any negligence, but was occasioned on account of bona fide error and misunderstanding in the names of Hon’ble judges, and being an outside counsel he could not understand that in fact two judges with similar predominant names are hearing the matters at the principal Seat in Karachi. He states that if one last opportunity be given, he would definitely be present and proceed with his objections, so that his application can be decided on merit rather than being dismissed on account of non-prosecution. He has filed his personal affidavit in this regard.
Learned counsel for the decree holder has filed counter-affidavit to the listed application. He in his counter has stated that this was not the first time when the counsel had remained away from the Court, rather by making a reference the diary sheets has pointed out that the counsel for the objector remained absent on 24 dates, therefore, instant application for restoration be dismissed, as the case of the objector on merit is based on a sham transaction and devoid of any merit.
Heard the learned counsel and reviewed the material available on record.
Admittedly, the counsel for the objector has shown beyond reasonable doubt that he flew to Karachi through Serene Airline Flight No.ER-503 and stayed in Karachi in the Pearl Continental Hotel presumably for attending the matter. Also admitted is that Mr. Justice Faisal Kamal Alam and Mr. Justice Agha Faisal were hearing the cases at principal seat at Karachi on the fateful date, therefore possibility that a counsel travelling from Islamabad may be confused between these two names, and he to land up in a different Court from the one where he actually was needed to be present, appeals to logic. The prerequisite for a restoration application made under order IX rule 9 CPC is that whether the non-appearance was for “sufficient cause” or otherwise.
The term “sufficient cause” as held in the case reported as 2007 SCMR 866 is not susceptible of an exact definition and it is laid down that no hard and fast rule could be laid down to cover all possible cases and each case is to be adjudged upon its particular circumstances and it is recommended that where non-appearance was not intentional, a strict view should not be taken to put a party out of the Court. In another case reported as 1982 CLC 767 the Court has held that term “sufficient cause” ought to be elaborately interpreted with the objective of advancing cause of substantial justice.
In the case reported as PLD 1992 SC 577 the Court has held that “sufficient cause” would include the cases of human failing, such as miscalculation, mistiming, misinformation or misunderstanding. Also in the case reported as 1989 CLC 1754 the Court observed that in a situation, where parties had no notice of transfer of case from one Court to another and counsel could not attend the right Court, this will be a case having sufficient cause. Similarly, in case reported as PLD 1976 Karachi 872, it is held that the instance when a case was dismissed while lawyer was on his way to the Court would be held to be one in which absence was on account of “sufficient cause” would be implied.
Applying the rules laid down in the above referred judgments to the case at hand, admittedly the counsel had travelled to Karachi, made reservations and stayed in a hotel in Karachi. He has filed his personal affidavit and affirmed that he was present in the premises of the Court when merely on account of misunderstanding and confusion between the names of two Hon’ble judges he waited in a different Court, in my humble view, such would be an instance where the absence could be held to be one with “sufficient cause”.
Also courts have desired that cases not to be dismissed on technicalities, as well as rights of the parties not to be hinged on the personal conduct of the counsel representing them.
In the circumstances when the applicant has shown that if given one chance he would be present to proceed with the case, and I having no reasons to deviate from the above laid down principles allow the instant restoration application, resurrect the case to the stage it was so dismissed and order that the matter be fixed in Court as per roster with intimation to the counsels for the parties for the upcoming date of hearing.
J U D G E