' TASSADUQ HUSSAIN JILANI, J.---Petitioner seeks leave to appeal against the order dated 28-5- 2002 passed by a learned Judge in Chambers of Lahore High Court, Rawalpindi Bench, Rawalpindi vide which his application for restoration of Writ Petition No,1261 of 1996 was dismissed. The said Writ Petition was dismissed for non-prosecution on 22-5-2002 and the very next day petitioner moved an application for restoration of the said petition, which met the same fate, vide the impugned order.
2. The ground taken in the said application was that petitioner's learned counsel Mr. Muhammad Munir Peracha had a number of cases fixed that day before different Benches of Lahore High Court and in particular he was appearing before Mr. Justice Mian Muhammad Jehangir in the following two cases when the case was called.
(1) Noor Muhammad and others v. Anar Khan (Civil Revision No,274 of 1995).
(2) Noor Muhammad and others v. Anar Khan (Civil Revision No,275 of 1995).
' As soon as he was free from the said Court he went to the Court of Mr. Justice Muhammad Saeed Akhtar. He found that the case had been dismissed for non-prosecution. The afore-referred ground did not find favour with the learned Judge and he dismissed petitioner's application on the ground as under:- "2. I am afraid, the contention of the learned counsel has no force. Learned counsel could have informed the Reader of the Court if he was busy before some other Bench. I do not find any force in this application and dismiss the same."
3. Learned counsel for the petitioner submitted that the absence of petitioner's learned counsel before the learned Judge who passed the impugned order was not intentional, that admittedly his counsel was appearing before another Bench of Lahore High Court in the same premises, that the learned Judge was apprised of the afore-referred fact but his application was dismissed without any tenable ground.
4. Learned counsel for the respondent defended the impugned order by submitting that to justify restoration of a case dismissed for non-prosecution sufficient cause has to be shown not only for the absence of the learned counsel but also of the party, that in the instant case, he added, the counsel for the petitioner had shown sufficient cause but there was no explanation on the part of the party regarding his non-appearance before the Court. In support of the submissions he relied on the cases of Muhammad Din v. Muhammad Amin PLD 1995 Lah. 15 and Safiullah Siddiqui v.
Karachi Electric Supply Corporation Limited 1997 SCMR 926
5. We have heard the learned counsel for the parties and have considered the submissions made.
Petitioner's application seeking restoration of the Writ Petition dismissed for non-prosecution was rejected by the learned Judge of the High Court without adverting to the ground taken in the said application i,e, that petitioner's learned counsel was appearing before another Bench of the High Court in the same premises. Learned counsel for the respondent in all fairness has conceded that the afore-referred ground would constitute sufficient cause insofar as the absence of the counsel was concerned. The absence of the party on the said day, he added, had to be explained separately and in absence of any sufficient cause for non-appearance of the party the writ petition could not be restored. We are not persuaded to agree with the proposition being canvassed firstly because it was a Constitutional petition, which was dismissed. Unlike the case before a trial Court no evidence was to be recorded. A party is not mandated to appear on each A and every day when it has executed a power of attorney in favour of the counsel. Secondly there was no specific direction for appearance of the party. The reliance of the learned counsel on the precedented case-law in Safiullah Siddiqui v. Karachi Electric Supply Corporation Limited 1997 SCMR 926 would not be relevant because in the said case, the civil suit was pending trial before the Senior Civil Judge and the latter had adjourned the case to a specific date with notice to the parties for recording evidence. On the date fixed none appeared for the defendant, the case was adjourned for the evidence of the plaintiff and on the adjourned date the evidence of the plaintiff was recorded, the defendant was again absent, arguments were heard and judgment was announced the same day. The application of the defendant under Order IX, Rule 13, C.P.C. Was dismissed as according to the learned trial Court, the defendant had failed to show sufficient cause for his non- appearance. This order was, however, set aside by a learned Judge in Chambers of High Court in revisional jurisdiction on the ground that there was no valid service of notice on the defendant.
Reliance was placed by the High Court on two judgments of this Court reported in Muhammad Swaleh and another v. United Grain and Fodder Agencies PLD 1964 SC 97 and Begum and others v.
Mst. Begum Kaniz Fatima Hayat and others 1989 SCMR 883. This Court while upholding the judgment and dismissing the appeal observed as under:- 64 . . . . . However, we may observe that we are not inclined to subscribe to the observation of the learned Judge in Chambers that a party cannot be penalized for the negligence of his Advocate. If the Court motion notice would have been served on the Advocate of the respondent he would not have appeared without any sufficient cause, the respondent would have no case for setting aside of the above ex parte judgment/order. A party does not discharge his obligation to conduct the case or to defend it by engaging an Advocate but it owes a duty to the Court to ensure that the case is properly and diligently prosecuted or defended. Any negligence on the part of the Advocate will be binding on him".
6. The afore-referred observations of this Court are of no avail to the respondent as admittedly it is nobody's case that petitioner's learned counsel was negligent or he had not shown sufficient cause. In Begum and others v. Mst. Begum Kaniz Fatima Hayat and others 1989 SCMR 883 the suit was dismissed for non-prosecution by a learned Single Judge of High Court of Sindh as neither the party nor the counsel was present. The application for setting aside the ex parte order was also dismissed and a Division Bench of the said Court upheld the order. This Court allowed the appeal against those concurrent orders. The affidavit of the counsel that he was suffering from acute pain due to trachoma and that he had no notice for fixation of the case for the said date was considered to be sufficient cause and the appeal was allowed. A separate explanation or "sufficient cause" for the absence of the party was not called. While interpreting the expression "sufficient cause" this Court at page 887 held as follows:-- . . It has been laid down by this Court that the words `sufficient cause' for restoration of suit dismissed for default are not susceptible of any exact definition and no hard and fast rules can be laid down and if non-appearance is not intentional it should not be viewed very strictly. This Court has also emphasized that the rules of procedure are not to be too technically applied but are re- construed to foster the cause of justice. It, therefore, follows that a party is to be visited with the penalty of being deprived of a fair trial on merits not by way of penalty except when three is positive evidence of negligence beyond explanation. In the light of. These principles the facts on record do not make out a case of gross negligence on the part of the Advocate or the appellants, even if their conduct leaves something to be desired in the matter of meticulous care in ascertaining the date for the fixation of the suit."
The case of the petitioner rests on a stronger footing i,e, the explanation given by his learned counsel duly supported by affidavit that he was appearing before another Bench of Lahore High Court in the same premises has been conceded to be a "sufficient cause" even by B respondent's learned counsel so far as the absence of the counsel was concerned.
7. In the afore-referred circumstances we are inclined to convert this petition into appeal and allow the same. The impugned order dated 28-5-2002 is set aside. The Writ Petition No,1261 of 1996 shall be deemed to be pending before the Lahore High Court, Rawalpindi Bench, Rawalpindi and shall be decided within three months from receipt of this order. No order as to costs.