This is an application under section 151, C. P. C. Read with Order IX, rule 9, for the restoration of the Constitutional Petition No. 1012/73, which was dismissed for default on 14-10- 1975, and has been made in the following circumstances.
2. On 27-9-1973, Constitutional Petition No. 1012/1973 was presented in this Court by the Government of Pakistan through the Director-General, Civil Aviation, Karachi, against the Pakistan Civil Aviation Employees' Union, the Registrar of Trade Unions and the Labour Court. In this petition the registration of the aforesaid Union was challenged mainly on the basis that since the provisions of the Pakistan Essential Services (Maintenance) Act, 1952, had been made applicable to the class of employees to which the members of the Union belong, neither the Union could have been registered nor have been formed. This petition was dismissed by my learned brother Lodhi, J., on 14-10-1975, because of non-appearance by the petitioner and its learned counsel. The present application for restoration of the main petition has been filed on 10-1-1977, that is almost 15 months later. The reasons submitted in the application for its late filing are that the petitioner did not know that the petition was dismissed on 14-10-1975 and on coming to know through respondent No. 4 about the dismissal of the Director-General, Civil Aviation, contacted the Ministry of Law and parliamentary Affairs to ascertain the correct position, and it was then covered that the learned counsel for the petitioner had left Karachi, discovered without either returning the briefs entrusted to him by the petitioner or making arrangements for pursuit of those cases, and in fact up to now is stated to be untraceable.
3. Mr. Muzaffar Hassan, the learned counsel for the petitioner/ applicant, submitted that inasmuch as the petitioner had entrusted the conduct of the case to a responsible and a senior lawyer, who unfortunately, for reasons unknown to the petitioner, left Karachi without either returning the briefs or informing the petitioner or even making arrangement for their attendance, the petitioner should not be penalised and that in the circumstances of the case the petitioner should be considered to have made out sufficient cause for the restoration of his petition. The question of restoration of the petition, in my view, hinges upon the fact as to when the petitioner became aware of the dismissal of the petition. Even if it be assumed, as stated in the application itself, that the petitioner was unaware of the fact of his petition till he was informed of its dismissal by respondent No. 4, the petitioner would have to explain the delay from the date of such information up to the date of the filing of the present application. Respondent No. 4, in the counter-affidavit, has submitted that he informed the Director-General, Civil Aviation, of the dismissal of the petition by a registered letter, acknowledgment due, dated 21-7-1976, and that along with this letter he had sent a copy of the order of the Court dismissing the petition. Mr. Muzaffar Hassan did not dispute the assertion of respondent No. 4 regarding sending of intimation of dismissal of the petition to the Director- General, Civil Aviation, and the fact that the intimation was accompanied by a copy of the order of the Court dismissing the petition. As the registered letter containing the intimation was sent from Karachi to the Director-General, who was posted in Karachi, it is expected that in the ordinary course the letter must have reached the Director-General by about 28-7-1976. Mr. Muzaffar Hassan submitted that thereafter the Director-General, Civil Aviation, was trying to contact their learned counsel, Mr. M. Zafar Khan, and it was only after all efforts made to locate him were exhausted that the Director-General contacted the Ministry of Law, and on its advice the present application for restoration of the petition was filed. If the Director-General had been prompt in taking the requisite action, it should not have been difficult for him to ascertain whether Mr. M. Zafar Khan was or was not available at Karachi, where the Director---General, Civil Aviation, himself was posted.
Furthermore the Court ,is entitled to take judicial notice of the fact that at the relevant time, not only the Ministry of Law had an office at Karachi but further the officesof the Attorney-General and the Deputy Attorney-General were also located at Karachi. In the circumstances, if the slightest vigilance had been shown by the Director-General, he should have been able to ascertain the correct position and got confirmation of the dismissal of his petition by the 10th or 15th August 1976.
The further delay of some 5 months thereafter has not been accounted for and most probably was due to a strong impression entertained by most Government servants that Courts will treat their delays 'with indulgence. Unfortunately, the law makes no distinction, so far as condonation of delay is concerned, between the Government or its agencies and the general public. The Supreme Court has been at pains to repeatedly emphasize this fact and it has refused to condone delay on the part of the government or its agencies unless each day's delay has been satisfactorily explained. In the present case, the delay of about 5 months has not been explained. In the circumstances, I find that this is not a fit case for the condonation of delay. I would accordingly dismiss the application with costs.