' This is an application for restoration of the Writ for non-prosecution on 15-4-1980 by my learned brother Khalil-ur-Rehman, J. As he then was as no one appeared on behalf of the petitioners on the said date fixed for hearing.
2. The petitioners moved an application on 26-4-1980 under section 151, C. P. C. For restoration of the writ in default on the sole ground that the learned counsel for the petitioners, namely Mr. Talat Farooq, Advocate, Kasur, received no intimation about the fixation of the writ petition, in question, and that the petitioners came to know of the order of dismissal in default only when they received the summons from the office of Rana Muhammad Sarwar, Additional Deputy Commissioner (General), Kasur on 23-4-1980 for appearance on 27-4-1980 as a result of dismissal of the said Writ Petition. In consequence, the petitioners immediately moved this Court for restoration of the Writ for non-prosecution. The petition is supported by an affidavit of Muhammad Tufail petitioner No. 1, as well as the affiavit of Mr. Talat Muhammad Farooq Sheikh, Advocate, learned counsel for the petitioners, who has made a statement on oath that he came to know about the dismissal of the writ petition on 23-4-1980 when the petitioners informed him about the same. The statement made in paragraph 4 of the affidavit is, however, in conflict with the solemn deposition made in paragraphs 2 and 3 of the affidavit of learned counsel for the petitioners in which he has specifically stated that as an out-station counsel he received the intimation of the case fixed in the High Court and that he did receive a card about the fixation of the case on 24-4-1980. Learned counsel for the petitioner has, however, made a statement at the Bar that the aforesaid deposition was due to a typographical error/omission and that as a matter of fact, he never received any intimation about the fixation of the case for the said date of hearing. I am inclined to believe the statement made by learned counsel at the Bar to the extent of typographical error/omission in his affidavit.
3. Be that as it may, the in default can be restored only if it is shown to the satisfaction of the Court that there is sufficient cause for condonation of delay. In compliance with the order dated 24-4- 1980 passed by this Court, the office has submitted a report that 154-1980 (actual) was fixed as date of hearing of the case and on 8-4-1980, the notice writer issued registered post card to the learned counsel for the petitioners at his Kasur address. It is further apparent from the order dated 4-5-1980 of this Court that there is an entry in the relevant register regarding dispatch of the notice to Mr. Talat Farooq Sheikh, Advocate on 8-4-1980 and postal receipt in connection thereto is also on record.
4. The sole ground vehemently urged by learned counsel for the petitioners is that since he is an outside counsel, a petition without intimation to him could not be dismissed for non-prosecution and that he has made a statement at the Bar as well as on oath by means of an affidavit that he never received intimation, and that the moment he came to know about the dismissal of his writ petition, he filed an application for restoration of the same with promptitude which is supported by the affidavit of the petitioner including the statement on oath made by him which proves his bona fide that it was not a case of deliberated prolongation of proceedings, but that the absence on the date of hearing was not intentional. In Sultan Ahmad and another v. Mst. Khurshid Bibi and another (1), the Supreme Court upheld the order of restoration by the lower Court when an application for restoration moved immediately after dismissal of suit in default and supported by evidence led by plaintiffs-respondents including statement on oath of Advocate for the plaintiff, that the absence was not one of deliberate prolongation of proceedings.
5. Learned counsel for the respondent has strenuously opposed the stand taken by the petitioner and has taken up the position that the ratio laid down in Sultan Ahmad's case is not attracted in the present case inasmuch as, the petitioners' counsel has himself given his address in the writ petition as "42, The Mall, Lahore" and that he is also a member of the Lahore High Court Bar Association and the cause list is supplied to him through Mr. Bashir, one of the peons of the Lahore High Court Bar Association. Mr. Talat Farooq Sheikh, Advocate, the learned counsel for the petitioners, has frankly conceded that his brother has got the office at 42, The Mall, Lahore and that he used to attend his office on the said premises. He also does not deny that cause list has been received in that office but he inadvertently failed to take notice of the case listed in the cause list for the said date of hearing. Learned counsel for the respondent further submitted that it is conclusively proved on record that intimation to learned counsel for the petitioners was also sent through registered notice and, therefore, presumption of service is attached to the notice in terms of section 114, Illustration (f ), of the Evidence Act. The contention finds support from the case of Mon Mohan alias Monomhan Roy Chowdhury v. Ajit Kamal Dutta Gupta (2). It was also observed in the precedent case that there is a strong presumption of due service in case of letter registered and posted.
6. Be that as it may, the outside counsel if engaged in a case cannot demand, as a matter of right, that he informed of the date of hearing by a letter from the High Court, as per order/rules of High Court issued on this subject on 15-1-1944, which are stated to be still in force, as certified by Mian Abdul Qayum, learned Officer on Special Duty, of this Court vide his report dated 14-6-1981. The relevant portion of the office order along with the certificate reads thus :- "(1) If an outside counsel is engaged in a case it is for him to make arrangements with a Lahore Advocate to communicate the date of hearing.
(2) 0. C. Not to be informed of date of hearing by a letter. (File V. H. 2, p. 15).
(3) High Court cannot enter into correspondence with outside counsel in the matter of fixing dates in their cases. (File V. H. 2, pages 31, 32).
' Office Report ' Although these orders were passed on 15-4-1944, but we issue intimations to outside counsel as a practice.
(Sd.) 0. S. D."
7. Reference may also be made to the minutes of the Special Meeting of the Administration Committee held on 11-11-1966 in which it was resolved that the letters sent by registered postcard be deemed to be sufficient intimation. This rule is still in force as per report dated 14-6-1981 of the learned 0. S. D. The relevant rules read thus :- "Consideration of the question whether the letters 'A. D.' appearing in the first proviso to rule 8 of Chapter 3-A, High Court Rules and Order, Vol. V, should be deleted to remove the ambiguity whether the awaiting of the postal acknowledgement is necessary before the case is fixed for heating.
' Resolved that the letters 'A. D.' occurring in the second line of the said proviso be deleted and the posting of registered postcard be deemed to be sufficient intimation."
8. It is proved on record that learned counsel for the petitioners was duly served for 15-4-1980 and the cause list of the High Court, for the said date was also supplied in his office at Lahore. Counsel if served with the date of hearing does not appear in the Court, the smooth working of the Court would be impossible and would also be detrimental to the litigant public who expect expeditious disposal of their cases from the Courts of law. No exception can therefore, be taken to the dismissal of the Writ Petition in default. In Abdul Lateef v. Jamal Din (1), it was held that when a party's counsel is informed of the date of hearing, the council is deemed to be briefed on behalf of his party and service on the council is presumed to be service on the party in terms of Order V, rule 17 read with High Court (Lahore) Rules and Orders, Vol. IV, Order VII-8, rule 4. In view of the above, there is no substance in the application for restoration of the writ -id default on 154-1980. The application, therefore, fails and is hereby dismissed with no order as ' to costs. {{FOOT NOTE}}
(1) 1979 SCM R 183 {{FOOT NOTE}}