' MUHAMMAD SAIR ALI, J.---The appellant filed Special Sales Tax Appeal No, 40 of 2004 in the High Court of Sindh at Karachi, challenging order dated 9-5-2003 of the appellate Tribunal Customs, Central Excise and Sales Tax, Karachi dismissing appellant's Sales Tax Appeal No, K-247 of 2001. On 17-12-2004, the High Court dismissed the above referred Appeal No, 40 of 2004 for non-prosecution.
Restoration Application bearing C.M.A. No, 135 of 2005 seeking restoration of the said appeal was filed. This application for restoration was also dismissed for non-prosecution on 15-4-2004. The appellant then filed Application No, 941 of 2005 to seek restoration of the restoration application.
This petition was allowed on 7-10-2005 and C.M.A.No, 135 of 2005 was restored by which appellant had sought restoration of the appeal.
' On 22-11-2005 after hearing of the arguments, the High Court dismissed appellant's application through order dated 22-11-2005 on merits as well as for being barred by time.
2. The appellant tiled Civil Petition No, 55-K of 2006 and obtained leave on 6-10-2006.
3. Mr. Abdul Qadir Khan, learned Advocate Supreme Court for the appellant contended that facts were not properly appreciated by the Sindh High Court and in taxation matters, the assessees were to be treated indulgent by entertaining their appeals even after the period of limitation. And that previous conduct of the appellant was not relevant as per the law. Further contended that it was only one day's delay which should have been ignored by the High Court, as appellant had been diligent in prosecuting his appeal.
4. We have heard the learned Advocate Supreme Court for the appellant and examined the record as well.
5. It was not the appeal which was being heard by the High Court of Sindh. Instead it was appellant's application for restoration of the appeal which was dismissed for non-prosecution on 17-12-2004. The order sheet before the High Court shows that on 7-5-2004, the appellant was heard in person and was granted interim relief which was extended on 13-5-2004 again in presence of the appellant and also on 3-6-2004.
' On 18-8-2004 the appellant again appeared in person and sought adjournment from the High Court to engage a counsel. Adjournment was allowed to engage a counsel but the last chance condition was placed on such adjournment. On 17-12-2004 none appeared. Appeal was thus dismissed for non-prosecution. Application for restoration was filed on 18-1-2005 by the appellant through a learned Advocate Supreme Court. The learned Advocate Supreme Court so appearing sought to withdraw his Vakalatnama whereafter another learned Advocate Supreme Court appeared for the appellant and undertook to file his power of attorney on 4-3-2005. Despite the last chance condition on adjournment had already been placed by the High Court yet repeated adjournment, was sought by the appellant. On 15-4-2005 none appeared whereupon the restoration application was dismissed but the same was restored on the application for restoration of the restoration application. We note that the learned Division Bench of the High Court, hearing the petition for restoration of the appeal noted the bad conduct of the appellant in prosecuting his appeal. Consequently, application for restoration was dismissed on merits as well as for being barred by time. The High Court observed that "the conduct of the appellant shows that he has not conducted himself in a fair manner, we do not find any reason to show extra indulgence. As no proper reasons have been shown for the absence". Without going into the question of limitation, we find that the learned Advocate Supreme Court for the appellant has not been able to explain the conduct of the appellant. The relief of restoration is dependent upon showing a good and sufficient cause for absence. In the present case, we do not find any exception with the impugned judgment of the High Court whereby it declined to exercise its discretion in favour of the appellant for non-existence of a good cause. The discretion so exercised by the learned Division Bench of High Court was neither arbitrary nor erroneous. This appeal is therefore dismissed with costs.