1. Ch. Muhammad Ibrahim Zia, J.--This appeal with the leave of the Court is addressed against the order of the High Court whereby the application for restoration of writ petition filed by the appellant has been refused.
2. 2.Brief facts forming back ground of the appeal are that the appellant remained Closure Watcher in the Reforestation Department. He was relieved from duties on 31.3.2003 without pensionary benefits. Feeling aggrieved, he filed a writ petition in the High Court. The same was dismissed for non prosecution vide order dated 8.9.2009. The appellant filed an application for restoration-of writ petition which also failed, hence, the appellant, approached this, Court through the instant appeal.
3. 3.Mir Sharafat Hussain Advocate, the learned counsel for the appellant stated that the writ petition in the High Court was dismissed on 8th September, 2009 for non prosecution whereas the application for its restoration was filed within time. The appellant categorically stated that he is an old person and unable to travel. Whereas the counsel was engaged to pursue the case but at the time of calling of the case, he was busy before the other bench of the High Court in the cases titled Anila Mehmood vs. PSC and Inhabitants of Lower Kloch vs. Azad Govt. & others. The application was supported by affidavit and copy of Diary of the counsel. Thus, sufficient reason was brought on record but despite this, the learned Judge High Court has rejected the application for restoration of the writ petition which resulted into miscarriage of justice.
4. 4.Ch. Shoukat Aziz; the learned Additional Advocate-General, opposed the appeal on the ground that the impugned order of the High Court is quite consistent with the principle of law. The appellant has failed to bring on record any sufficient cause for his absence. Although the counsel was stated to be busy before the other bench but it was the duty of the appellant to remain present in the Court. Thus, the appeal has no merits and entails to be dismissed with costs.
5. 5.We have heard the learned counsel for the parties and also gone through the record. In the light of the facts stated hereinabove, it reveals that the appellant's writ petition was dismissed for non prosecution on 8.9.2009. A perusel of the dismissal order reveals that non for the parties were present before the Court. It is also not clear whether the date was fixed for hearing or not.' Be that as it may, but the appellant has taken categoric stand that being an old person and habitant of a far flung area, he was unable to personally appear before the Court and he has engaged the counsel who at the time of calling of the case, was busy in the other bench in prosecuting the cases titled Anila Mehmood vrs. PSC and Inhabitants of Lower Kloch vrs. Azad Govt " & others. In support of his claim, copy of Diary of the counsel was also appended with the application. The application was also supported by affidavit of the counsel. Under the provisions of Rule 42 of The Azad Jammu and Kashmir, High Court Procedure Rules, 1984, in writ proceedings, the provisions of Civil Procedure Code are applicable. Under Rule 4 Order IX of CPC, if an applicant shows sufficient cause for non appearance, the Courts are liberal to accept the application. The Courts have always liberally interpreted the term 'sufficient cause'.
6. It is also settled principle of law that the applications for restoration are normally disposed off on the basis of the affidavits. The Courts have also held that ordinarily the counsel's affidavit should not be disbelieved.
6. In a case titled Muhammad Nazir & others vs. Muhammad Sadiq & others, reported as [PLD 1989 AJ&K 28],, on the question of affidavit, it has been held that: "...The Advocate who had filed the said affidavit is an Advocate of a considerable standing at the bar and there appears no apparent reason as to why he should have made a false solemn affirmation in his affidavit for the sake of the interest of his client only especially when he had no personal interest in the outcome of the case before the District Judge. In my view, ordinarily, when an Advocate, solemnly affirms about a matter relating to the case in a Court of law in which he was or is engaged as counsel of the party to such case on the basis of his personal knowledge, he should be believed unless there appears some cogent ground for not doing so."
7. The same view has been expressed by the apex Court of Pakistan in a case titled Ghulam Mustafa Shah vs. Haji through legal heirs & others, reported as [1993 SCM R 256] wherein it is observed as under:-- The Advocate for the appellant filed his affidavit stating that he could not detect the case while examining the cause list and inadvertently, lost sight of it. The explanation was not accepted. Leave was granted to consider whether in view of the affidavit of the counsel in the High Court and decision in Shaukat Hussain & others v. Mst. Saghiran Begum & others, PLD 1983 SC 264, the impugned order could be justified."
8. Finally the apex Court, in this case treated the explanation as sufficient cause and while setting aside the order of the High Court, restored the lis.
9. In another case titled Muhammad Khan through legal heirs & others vs. Shabrati, reported as [PLD 1995 Kar. 267], while dealing with the sufficient cause, the Court has observed as under:-- "The expression 'sufficient cause' is not capable of being confined to precise, identical, and in variable definition, nor any hard and fast rule can be propounded as to encompass all possible eventualities which may arise due to particular facts and circumstances of each case. Therefore, the parameter of each case would primarily be its own facts, which would have to be taken into consideration for, determining as to whether sufficient cause is shown or not.
10. To make a mistake about the date is not lapse of category, which can out-rightly be excluded from the scope of bona fide mistake. Such mistake occur by misapprehension of the advocate and some time by unintentional wrong communication by the clerk of the Court. In this case, the mistake was bona fide. It is established from record on that particular date two cases having same number were fixed. It being so, the possibility of noting down a wrong date could not be ruled out.
11. Under the circumstances, the Courts below should have exercised discretion in favour of the applicant. Law favour adjudication on merits and this principle is to be followed unless there are practical difficulties which cannot be surmounted."
12. The Courts are also of the view that the discretion for restoration is also to be liberally exercised subject to advance the cause of substantial justice.
7. Thus, in view of the facts, we are of the considered opinion that the appellant has brought on record sufficient reasons for his non appearance as well as non appearance of his counsel. The findings E recorded by the learned High Court in the light of the stated facts are not sustainable, therefore, while setting aside the impugned judgment of the High Court, the writ petition is restored to its original number and the High Court shall proceed further in accordance with law.