1. C.M.A.No.7157 of 2004.---The facts relevant to this order are that on failure of the defendants to file their written statement despite chances order dated 2-11-1999 was passed debarring them from filing written statement. Thereafter the matter crossed the stage of filing written statement and plaintiff was asked to file evidence in shape of affidavit, which he did file. Nearly about 5 years thereafter present application for recalling the order dated 2-11-1999 was filed. Today arguments have been heard on that application.
2. ' Mr. Sulehri, learned Advocate for the defendant No.2 has contended that in fact the lapse occurred due to dispute over the payment of professional fee to the previous advocate and the learned Advocate did not file written statement. He further contended that no counter affidavit has been filed by plaintiff against the affidavit filed in support of the present application. He lastly requested for permission to cross-examine the witness in case his application fails.
3. ' Mr. Abdul Rauf learned Advocate who had previously been representing the defendant No.2 has stated that the application filed by learned Advocate is not maintainable as it was only the party which could file the affidavit and not the advocate. In support of his contention he referred to the decision of the Honourable Supreme Court in the case of Barkat Ali v. Muhammad Nawaz (PLD 2004 SC 489).
4. Mr. Nasir Maqsood learned Advocate for the plaintiff contends that the application is belated one and also the reason mentioned in it for not filing the written statement is neither cogent one nor sufficient.
5. ' The application is belated one and the reasons mentioned in it are not justifying or explaining the delay satisfactorily. The party having failed to avail an opportunity cannot be permitted to file the written statement after a prolonged time and that also after the evidence has been filed. Even otherwise the party is not absolved of pursuing its matter vigilantly by merely engaging an advocate. The case cited by the learned advocate is not relevant as the same is on the point of filing affidavit by the advocate, which is not the case here. Thus the present application is meritless and is dismissed. However, the defendant No.2 shall be given opportunity to cross-examine the witness and it is for them to avail it or not.
6. ' C.M.A. 7157 of 2004 stands disposed of in the above terms. To come up on 16-2-2005 for evidence.