Anwar Zaheer Jamali, J.--CM.A No, 1941 of 2012, is an application moved by appellant Ali Muhammad for recalling of order dated 22.2.2011, passed by this Court in Civil Appeal No, 1339/2009, and restoration of the appeal, which was dismissed due to non-pros, 'on.
C.M.A No, 1986/2012, is another application moved by the app seeking condonation of delay in the filing of C.M.A No, 1941/2012.
2. We have heard the arguments of learned ASCs for the appellant and respondent on both these listed applications and perused the case record, which reveals that in C.P.L.A No, 259-L/2008, leave was granted vide order dated 29.10.2009, whereafter it was converted into Civil Appeal No, 1339/2009. On 22.2.2011, due to the absence of appellant as well as his ASC/AOR, this appeal was dismissed for non-prosecution. Against this order, on 30.4.2012, appellant moved an application for recalling of the above said order, restoration of appeal and its disposal on merits. This application is accompanied with another C.M.A, seeking condonation of delay in the filing of application for restoration of appeal. The ground for condoantion of delay disclosed in the application is that neither the learned ASC for the appellant nor his AOR had any knowledge about the fixation of appeal before the Court on 22.2.2011, and the appellant for the first time came to know about its dismissal for non-prosecution on 23.4.2012 during the execution proceedings pending before the executing Court. Thereafter, he immediately obtained its copy and moved an application for restoration of appeal alongwith another application for condonation of delay, so that his appeal may be heard and decided an merits.
3. On notice of both these applications, concise statement has been filed on behalf of respondent, which is accompanied with photo-state copy of the cause List No, 8/2011, dated 22.2.2011, showing enlistment of the appeal at S.No, 13 and some other documents from the record and proceedings of pending execution application, aimed to show negligent conduct of the appellant and to substantiate the claim of respondent that the order of dismissal of appeal for non-prosecution dated 22.2.2011, was well within knowledge of the appellant, much prior to 23.4.2012, therefore, neither case for condonation of delay nor for restoration of appeal is made out.
4. Mr. Pervez Inayat Malik, learned ASC for the appellant has taken us to the cause list dated 22.2.2011, to show that of course reference of civil appeal No, 1339/2009 is available at its serial No, 13, but inadvertently his name has not appeared in the cause list. He also made reference to other documents submitted on behalf of respondent alongwith his concise statement to dispute the assertion of respondent that appellant had any prior knowledge before 23.4.2012 about the dismissal of his civil appeal by the apex Court, He further made reference to leave granting order dated 29.10.2009 and contended that once a petition for leave to appeal was converted into appeal with leave of the Court on account of the fact that substantial and valuable rights of appellant are involved in the case, it will be in the fitness of things that even if there is some element of negligence on part of appellant or his AOR, in order to foster the cause of justice, it may be condoned and the appellant in turn may be penalized by awarding some cost in favour of respondent. He also invited our attention to the memo. of appeal filed before the Apex Court and the contents of leave granting order to show that the memo. of C.P.L.A was drawn by him and he had represented the appellant at the stage of leave grant proceedings in the civil petition for leave to appeal, but it was only due to his non-availability at the bar for some period owing to his elevation as Judge of the Lahore High Court that the appeal could not be perused by him and resulted in its dismissal for non-prosecution vide order dated 22.2.2011.
5. Conversely, Mr. Sanaullah Zahid, learned ASC for the respondent contended that inordinate delay of 438 days should not be condoned in order to give premium to the appellant for his negligence.
More so, in the circumstances when ample material has been brought on record by the respondent through his concise statement, which gives strong presumption of prior knowledge of appellant about the dismissal of his civil appeal by this Court vide order dated 22.2.2011.
6. Keeping in view the submissions made before by the parties learned ASCs and the material brought on record, we find that indeed Civil Appeal No, 1339/2009 was listed in the cause list No, 8 of 2011 dated 22.2.2011 at S. No, 13, but the name of leading counsel on behalf A of appellant i,e, Mr. Pervez Inayat Malik did not appear in the cause list, which may be one of the reason that the appeal could not be vigilantly pursued by him. In addition to it, the other material brought on record by the respondent from the proceedings of executing Court does not furnish any definite proof about the earlier knowledge of appellant about the order dated 22.2.2011, which had definitely caused serious prejudice to his interest, subject matter of civil appeal No, 1339/2009. We may reiterate that law favours adjudication of lis on merits, unless there is definite proof of the fact about the sheer negligence of a litigant party in pursuing his cause before the Court of law. In the instant case, from the record, we find that there was also some mistake from the office in not showing the name of the lead counsel Mr. Pervez Inayat Malik in the cause list dated 22.2.2011, which resulted in dismissal of his appeal for non-prosecution, and also expiry of period of limitation before the appellant could file the two listed applications. In such circumstances, even if we agree with the arguments of learned ASC for the respondent about the negligence of appellant to some extent, for that, he can be penalized by awarding of cost, as has been done by this Court vide its short order dated 15.1.2013.
7. Foregoing are the: reasons for the said short order, where both the listed C.M.As were allowed.