1. MUHAMMAD AFZAL SOOMRO, J.--1 & 2. Through these applications, (C.M.As. Nos.245 and 1619 of 2005) first one supported by the affidavit of the learned counsel, himself, whereas second one supported by the petitioner, restoration of the main petition, dismissed on 10-f- 2005, has been prayed for on the ground that due to oversight while checking the case in the cause list, supplied him on 8-1- 2005, learned counsel could not appear on the said date nor could he inform the applicant about the fixation of the case. He further submits that such mistake was neither intentional nor it was deliberate. Learned counsel has contended that the main petition may be restored to its original position and in consequence thereof operation of order passed by the learned trial Court be suspended as since writ 'of possession with police aid has been issued there is imminent apprehension of eviction of the petitioner from the tenement in question at any time.
2. In the counter-affidavit, filed by respondent No.l, it has been averred that petition was dismissed by this Court on 10-1 -2005 in the late hours when petitioner as well as his counsel was not present. It has further, been averred in the said counter affidavit that the restoration application was filed after lapse of 15 days and such attitude of the petitioner and his counsel shows that they were not vigilant and under the circumstances the application filed on behalf of the petitioner is liable to be dismissed.
3. I have considered the contentions: of the learned counsel appearing on behalf of the petitioner, gone through the counter-affidavit, filed on behalf of respondent, as well as the record.
4. Perusal of order sheet shows that the main petition was first got fixed on 27-9-2004 when notice was issued to the respondent for 11-10-2004 and R&Ps of the case was called from the Courts below. On 10-10-2004 when the case came up for hearing, the learned counsel sought one week's time for payment of costs and supply of copies. However, on 10-1-2005 when the case came up for hearing none was present on behalf of the petitioner upto 11-54 a.m. though case was called twice since morning. Mr. S.M. Afzal Advocate filed vakalatnama on behalf of respondent No.l. Since none was present on behalf of the petitioner, order dismissing the petition for non-prosecution was passed which reads as follows:-- "This case has been called twice since morning. It is now 11-54 a.m. no intimation is received. The petition is dismissed for non-prosecution along with listed application."
5. Perusal of record further shows that the petitioner after lapse of 15 days filed application for restoration on 1-2005 which came up before the Court on 31-1-2005 and notice was ordered to be issued for 7-2-2005 and on such date since learned counsel for the respondent was not present, the case was adjourned to 15-2-2005 when again none was present on behalf of respondent No.l and the case was adjourned to 22-2-2005 on which date both the learned counsel were present and the time was sought for filing counter-affidavit on behalf of respondent No.l and the case was adjourned to 25-2-2005. However, on 25-2-2005, when again case came up for hearing no one was present on behalf of respondent No.l and again the case was adjourned to 28-2-2005 on which date board was discharged. Again, when on 30-4-2005 case came up for hearing none was present on either side and the restoration application was dismissed. Learned counsel for the petitioner filed application for restoration of C.M.A. 'No.245 of 2005 which ultimately was restored on 16-5-2005 and the learned counsel for the petitioner immediately filed application, listed at Serial No.2 seeking whereby suspension of order passed by the trial Court, notice on which application was issued on 18-5-2005 for 23-.5-2005 when again learned counsel for respondent No.l did not appear and the operation of the impugned order was suspended. Again on 13- 9-2005 when again matter came up for hearing no one was present on behalf of respondent No.l. On 29-9-2005 though learned counsel for respondent No.l was present 'but learned counsel for the petitioner was reported to be unwell and the matter was adjourned to 10-10-2005 when the board was discharged. On 21-11-2005 vhen the matter came up for hearing none was present on either side and again restoration application as well as application for suspension of impugned order were dismissed for non-prosecution. However, learned counsel for the petitioner again moved for restoration of C.M.A. No.245 of 2005 which, again, was restored on 14-11-2006. It is to be noted that no one was present for respondent No.l not only on the said date i.e. 14-11-2006 but the same was the position even on the next date i.e. 19-1-2007 when the learned counsel for the petitioner was very much present. Today, again, when the matter was taken up for hearing though the learned counsel for the petitioner was present but no one was present on behalf of respondent No.l.
6. The above conduct of the learned counsel appearing for respondent No. 1 shows that though he questions the vigilance of the learned counsel for the petitioner but he himself failed to appear on many dates despite service of notices.
7. In view of what has been discussed above and not only to show indulgence but also keeping in view the principle that the cases should be disposed of on merits and technicalities be avoided, I am inclined to allow C.M.As. Nos.245 and 1619 of 2005. Consequently, the main petition is restored to its original position and the operation of the impugned order is suspended as ordered on 25-2- 2005.
8. CMAs Nos.245 and 1619 of 2005 stand disposed of.