1. NADEEM AZHAR SIDDIQI, J. - By this application the petitioner has prayed for recalling the order dated 21.9.1997 by which the petitioner was dismissed for non-prosecution.
2. The respondent No. 2 has filed his counter-affidavit and opposed the restoration of the pointation.
3. The petitioner has filed his affidavit-in-rejoinder to the counter-affidavit filed by the respondent No. 2.
4. Learned counsel for the petitioner submits that sufficient cause for restoration of the petition has been shown in paras 3 and 4 of the petition. He then submits that technicalities have to be avoided in dispensation of justice and as far as practicable matters have to be decided on merits. He then submits that non-appearance of the petitioner and his counsel was neither deliberate nor intentional, but due to cause shown in the affidavit which is sufficient for restoration of the case. He has relied upon the following reported case:-
(1) Mehr Textile Mills v. Investment Corporation of Pakistan (2005 SCM R 1328);
(2) Pirzada Niaz Ahmed Faruqui v. Muhammad Bux (2004 SCM R 862);
(3) Abdul Hakeem v. Abdul Rashid (1994 CLC 1085); and
(4) Abdul Ghafoor v. Mst. Amtul Saeeda (1993 MLD 1463).
5. Learned counsel for the respondent submits that no sufficient cause for restoration has been shown. He then submits that on 7.9.2007 Mr. Tasawur Hussain, Advocate undertakes to file vakalatnama on behalf of the petitioner and in his presence the case was adjourned to 21.9.2007 and the said Advocate has filed his power on 7.9.2007. He then submits that the record of the case shows that number of Advocates were appearing for the petitioner and there is not explanation that why one of the several advocates was not present in a date by Court case to proceed with the matter. He has also drawn the attention of the Court towards the conduct of the petitioner and submits that after dismissal of the petition restoration application was also dismissed, which was restored on 16.5.2008. He then submits that cost imposed on 25.5.2007 was deposited on 25.10.2007 after dismissal of petition just to make a ground for restoration.
6. Learned counsel' has relied upon the following reported cases:---
(1) Bashir Ahmed etc. v. Settlement and Rehabilitation Commissioner (1982 SCM R 188);
(2) Saeed Ahmed v. Additional District Judge, Rawalpindi (1997 M LD 175); and
(3) Muhammad Habibullah Siddique v: Haji Habib Jaffar ali (1988 M LD 1143).
7. In this matter while adjourning the matter on 25.5.2007 cost of Rs. 4,000/- was imposed which was not paid till dismissal of the petition on 21.9.2007. The record shows that on number of occasion the matter was not attended by the advocates for the petitioner inspite of the fact that the powers of several advocates are available on record. It also appears from the record that lastly the power of Mr. Tasawur Hussain, Advocate has been filed. The affidavit is silent with regard to non- appearance of Mr. Tasawwur Hussain, Advocate. Mr. Muhammad Yousuf, Advocate filed rejoinder and claims that after the death of Mr. Sarfraz Ahmed, Advocate in 2006 he was looking after the matter and due to death of his cousin he could not attend the matter. In the affidavit in support of the restoration the petitioner states that Mr. Tasawur Hussain has informed that he could not attend the matter due to his illness. Inspite of this the petitioner has not made any arrangement to proceed with the matter, which clearly reflects negligence on his part. The record further show?
8. That initially Mr. Sarfraz and Mr. Muhammad Yousuf, Advocate filed their Vakalatnamas and thereafter on 17.2:2007 Mr. Khizer Asker Zaidi, Advocate filed his Vakalatnama and attend the Court on 22.3.2007 and thereafter on every date of hearing till 10.8.2007 Mr. Muhammad Yousuf, Advocate appeared and holds brief of Mr. S. Khizer Asker Zaidi, Advocate and no to proceed with the matter.
9. On 7.9.2007 Mr. Tasawur Hussain, Advocate has filed Vakalatnama but after obtaining date by Court has failed to appear and the petition was dismissed on 21.9.2007. The conduct of the party is very relevant in deciding the restoration application. The previous conduct of the petitioner shows that he was not vigilant in pursuing the case and his Advocates also remained absent on various dates. The applicant has failed to demonstrate sufficient cause for restoration of the petition. The affidavit of the petitioner and Mr. Muhammad Yousaf, Advocate are not in consonance with each other and the reasons shown are not sufficient to restore the petition.
10. In the reported case of Pirzada Niaz Ahmed Faruqui v. Muhammad Bux (2004 SCM R 862) the Hon'ble Supreme Court in order to ensure that the case is decided on merits and to do complete justice between the parties granted the relief reported cases of Mehr Textile Mills v. Investment Corporation of Pakistan (2005 SCM R 1328) the Hon'ble Supreme Court has set aside the winding up order subject to payment of cost of Rs. 10,000/-.
11. In other reported case of Bashir Ahmed v. Settlement and Rehabilitation Commissioner (1982 SCM R 188) a learned D.B. Of Hon'ble Supreme Court has held that in showing an indulgence, in exercising a discretionary power and in affording relief in such matters the Court was well- justified to see to the conduct of the petitioner in diligently pursuing the case before the Court.
12. Following the view of the Hon'ble Supreme Court in the above two reported cases the petition is restored to its original number and position subject to payment of cost of Rs. 50,000/- to be deposited with the Nazir of this Court within one week. On deposit of the cost Rs. 10,000/- will be appropriated towards High Court Employees Benevolent Fund and remaining Rs. 40,000/- will be distributed amongst Mr. Bhajandas Tejwani, Advocate for the respondents and the respondent No. 1(a), 1(b) and 1(e) on whose behalf Mr. Bhajandas Tejwani, Advocate is continuously appearing in this matter.
13. The application is disposed of with the above terms.