1. ' NADEEM AZHAR SIDDIQI, J.---By this application the objector has prayed for recall of the order dated 31-10-2005 by which C.M.A No,1363 of 2005 was dismissed for non-prosecution. C.M.A No,1363 of 2005 has been filed for recall the order dated 26-8-2005 by which the side of the objector for leading further evidence was closed.
2. ' The grounds for recalling the order as stated in the affidavit are that out of two counsel one was gone to perform Umrah and the other had no notice for date of hearing i.e, 31-10-2005 and was busy at Lahore in the election of Supreme Court Bar Association.
3. ' Counter-affidavit to this application has been filed by the decree-holder wherein it has been stated that no sufficient ground for recalling of the order dated 31-10-2005 has been shown. It was further stated in the counter-affidavit that since the passing of the order dated 17-6-2002 the conduct of the objector has been throughout dilatory, obstructive and negligent with a view to defeat the realization of decretal amount.
4. ' Sardar Qasim Advocate appeared on behalf of Mr. Malik Qayyum Advocate and contended that Malik Qayyum being senior counsel has to proceed with the matter but due to want of notice and his pre-occupation in his election he could not come to Karachi to proceed with the matter. He contended that for want of due notice the absence of Malik Qayyum was not deliberate and intentional. He further submits that the technicalities should be avoided and the matter should be decided on merits.
5. ' On the other hand Mr. Billal Khawaja seriously opposed the grant of application and contends that keeping in view the past lapses on the part of objector no sufficient cause was shown for restoration of application. He submits that previously also the application was restored on payment of cost. He further submits that the objector has engaged two counsel and both were called absent. He submits that no notice is required when the case was listed in the daily cause list and it is the duty of the counsel to appear and argue the case or request one of their colleagues to inform the Court with regard to their inability to proceed with the case.
6. ' I have heard the learned counsel for the parties and perused the record.
7. ' C.M.A. No,2568 of 2002 filed by the objector was dismissed on 21-9-2004 and was restored on 19- 10-2004 on payment of cost of Rs,3,000. This application was heard on 28-10-2004 and Mr. Abdul Ghafoor Qureshi was appointed Commissioner to record evidence of the parties. The commission could not be concluded within the time allowed by the Court and the same was extended for further two months on 13-1-2005. The learned Commissioner submits that since time allowed by the Court has expired he returned the commission without cross-examination of the objector. On 26-8-2005 on the basis of Commissioner report the side of the objector to lead any further evidence was closed. On that date also none was present for the objector. C.M.A. No,1363 of 2005 was filed for recalling the said order dated 26-8-2005 and that application was dismissed on 31- 10-2005, hence this application. Even after filing of this application the learned counsel for the objector was not present on two subsequent dates i.e, 29-11-2005 and 15-12-2005. On 29-11-2005 the case was adjourned at the request of Mr. Rana M. Shamim Advocate holding brief for Mr. Malik Qayyum Advocate and on 15-12-2005 none was present for objector even then the case was adjourned. The grounds shown in the affidavit are not sufficient to recall the order for the reason that when a counsel is going out of country it is his duty to inform the office or to obtain general adjournment or to request his colleagues at bar to inform the Court. The other ground that no notice was served upon other counsel has also no force for the reason that the case was listed in the cause list and that the Vakalatnama of Malik Qayyum containing two addresses one of Lahore and the other is of Karachi. Notice of intimation is only required when the Advocate has no address at Karachi. In the affidavit none of the Advocate has stated that they have no knowledge of the fixation of case on 31-10-2005. Only a technical objection with regard to non-service of notice was taken. The reason as non-appearance of Malik Muhammad Qayyum Advocate that he is busy at Lahore in the election of Supreme Court is not a sufficient ground to recall the order and the practice of leaving the case to attend other assignment cannot be allowed. As far as the contention of Sardar Qasim Advocate that technicalities should be avoided in dispensation of justice it is suffice to say that sufficient opportunity was provided to the objector to prove his contention but if at all the objector is not interested to avail the same and was only interested in delaying the proceedings, the same cannot be allowed for unlimited period and there should be an end and the other side will not be punished. In this case sufficient opportunity was provided and the objector was not debarred from proving his case on technicalities. His application bearing C.M.A. No,2568 of 2002 is still pending and he may argue the same on merits and if he is in a position to prove his contention he is entitled to the relief claimed in the application. Sardar Qasim has relied upon.PLD 1964 SC 97 (Muhammad Swaleh and another v. M/s. United Grain & Fodder Agencies). In this reported case the case was adjourned to a date which was subsequently declared holiday and the Court has taken up the matter on the following day and without notice to defendant ordered ex parte proceedings. In this case the notice was issued to the learned counsel by way of listing the case in the cause list. The other case relied upon by the learned counsel for the objector is Hassan Din and another v. Jalal Din and 2 others (1992 CLC 33). In this reported judgment the Court has held that the application for setting aside ex parte decree which involved disputed questions of facts and law ought not to have been disposed of summarily without proper inquiry by the Court. In the present case there is no disputed questions of facts or law and no detail inquiry is required. Both the cases relied upon are not applicable to the present case. For recalling the order the objector has to show sufficient cause for his absence when the case was called and the application was dismissed.
8. ' The objector has failed to show sufficient cause for recalling the order. The application (C.M.A.
9. No,1736 of 2005) is dismissed with no order as to costs.