JUSTICE (R) RAJA-FAYYAZ AHMED (CHAIRMAN).--- Through this filed by the applicant/petitioner for restoration of the main case dismissed for non- prosecution on 22-10-2012 has been sought for on the ground that main case was fixed before this Bench of the Commission on 30-10-2012 and when the learned Counsel for the applicant/petitioner on 23-10-2012 visited the NIRC to conduct his cases, he was informed that the titled case was listed on 22-10-2012 and was dismissed for non-prosecution. Further it has been contended in the application that neither the learned counsel for the applicant/petitioner nor the applicant/petitioner was informed about anti dating of the case and the absence thus on the part of the applicant/petitioner or his learned Counsel in appearing before the Commission on the date was neither deliberate or intentional but was beyond the control of the petitioner and his learned counsel.
2. Subsequently on 23-11-2012 C.M.A. No,7A(262) of 2012 was filed by the applicant praying therein that the respondent may be restrained from transferring, posting, dispatching and issuing the relieving order of the applicant or doing any other act which is prejudicial or constitute an invasion over the rights of the applicant in any manner whatsoever till final disposal of the main case. Also it was prayed therein that the application for the restoration of the main petition may be disposed of at an early date. On the same date ice, 23-11-2012, the C.M.A. Was listed for hearing and vide a detailed order of even date, notice was directed to be issued to the respondents and till then the status quo position in respect of the apprehended transfer and relieving him (petitioner) from the present position of posting was directed to be maintained. Order dated 23-11-2012 passed by this bench for convenience and reference read as under:--- "Heard the learned Counsel for the applicant MRs, Shoeba Ismail present along with Sardar Masroof Khan Abid, Advocate. The contents of the C.M.A. Has been perused. It is pertinent to note that main case No,4A(47) of 2012 was fixed for hearing on 30-10-2012. Before the aforesaid date of hearing, a C.M.A. No,7B(206) of 2012 was moved by the respondents for anti dating the main case for the reasons given in the application. This C.M.A. Was fixed on 5-10-2012 and was allowed by anti dating the case for 22-10-2012, on which date notice was directed to be issued to the petitioner for 22-10- 2012. Notice under registered cover was issued to the petitioner on 16-10-2012. When the case was taken up on 22-10-2012 none was present for the petitioner although called repeatedly and even intimation was conveyed by the learned Counsel for the petitioner. It has been pointed out by the learned counsel for the petitioner that status quo order was granted on 22-5-2012 about the alleged apprehended transfer of the petitioner from his present place of posting. As notice was issued to the petitioner under registered over on 16-10-2012 at his given address, hence the presumption was that he was duly served. Thus in the circumstances, the petition was dismissed for non-prosecution on 22-10-2012 filed under section 54(e) of I.R.A., 2012. Thereafter C.M.A.
No,7A(228) of 2012 was moved on 24-10-2012 for restoration of the petition and along with this application no stay application was filed by the applicant. This C.M.A. For restoration was fixed for 25-10-2012 and the learned Counsel for the petitioner Mr. Abdul Hafeez Amjad was heard. Petitioner was also present who stated that notice for anti-dating the case was not delivered to him. Notice was directed to be issued to the respondents for 10-12-2012.
Now C.M.A. No,7A(262) of 2012 has been moved (presented to the Registrar today i,e, 23-11-2012) and fixed for preliminary hearing today. It has been contended that the opponent C.B.A. Union is intending to get the applicant transferred being the active office-bearer and a member of opponent union i,e, Air League. As a result of his active participation in the referendum in which the opponent union succeeded by a short margin with the result that the applicant has been attempted to be victimized by the management under the influence of the opponent union. The applicant according to the learned counsel is being targeted because he holds the office of Vice President of his union (Air League).
Also during course of submissions, the applicant submitted a statement in writing to the effect that no transfer order has been received by him till this time and even he has performed his duty today as per roster. States that he genuinely apprehends that pending disposal of C.M.A. No,7A(228) of 2012 he is likely to be transferred and relieved from his present position of posting which is supported by sworn affidavit of the applicant. This C.M.A. Is also supported by affidavit of the applicant. Notice of this C.M.A. And C.M.A. No,24(99) of 2012 be issued to the respondents for the date already fixed. Having considered the submissions put forth by the learned counsel, the contents of the present C.M.A. And the statement in writing filed before me by the applicant as afore-mentioned, let notice be issued to the respondent for the date already fixed in the matter. Till then status quo position in respect of the apprehended transfer and relieving him (petitioner) from the present position of posting be maintained.
3. Rejoinder to C.M.A. No,7A(228) of 2012 for restoration of the main case and C.M.A. No,7A(262) of 2012 were filed on behalf of the respondents, seriously contesting the grounds urged and the stance taken in 'both these C.M,As.
4. Civil Miscellaneous Application for restoration of the main case was moved on 24-10-2012 and the same was fixed for hearing on 25-10-2012. The learned Counsel for the applicant/petitioner contended that notice for anti-dating the hearing was not delivered to the applicant/petitioner and notice of the application was directed to be issued to the respondents for 10-12-2012. The earlier appointed Counsel was substituted by Ms. Shoaiba Ismail who appeared before the Bench on 10-12-2012 but had not filed power on behalf of the applicant/petitioner. She was required to submit the same during course of the day while the learned Counsel for the respondents informed that he is busy on the said date before the Hon'ble Lahore High Court, Rawalpindi Bench, Rawalpindi. Accordingly, the matter was adjourned to 27-12-2012 and the status quo order was directed to be maintained till next date i,e, 27-12-2012, on which date reply-statement was filed on behalf of the respondent-Corporation while the learned counsel for the applicant/ petitioner stated that she has come all the way from Karachi where she had gone to avail winter vacations which are to last on 31-12-2012.
5. It is pertinent to note that the main case was fixed on 30-10-2012 and on 1-10-2012 C.M.A.
No,7A(206) of 2012 was filed on behalf of the respondents seeking for anti-dating the main case on the ground mentioned therein. This C.M.A. Was listed for 5-10-2012 and was allowed vide order dated 5-10-2012 thus the main case was directed to be listed for 22-10-2012. Notice for this date was directed to be issued to the petitioner.
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6. The learned Counsel for the parties have been heard at length. It has been contended by the learned Counsel for the applicant/petitioner that notice for the this date fixed in the case i,e, 22-10- 2012 was not delivered to the applicant/petitioner hence, the order passed by the Commission on 22-10-2012 dismissing the main case for non-prosecution may in the interest of justice be re-called which be restored to its original number as the law favour for adjudication of the cause on merits. It has been argued by the learned counsel that the main case was not fixed for hearing therefore, the order dated 22-10-2013 is not tenable and deserve to be recalled in support whereof reliance has been placed on the reported judgment of the Hon'ble Supreme Court in the case of Allah Wala Foundation v. Province of Sindh and others (2002 SCMR 798).
7. The learned counsel for the respondents seriously contested the application seeking for restoration of the main case as well as; the C.M.A. Filed on behalf of the applicant/petitioner for grant of status quo order pending disposal of the C.M.A. He strenuously contended that since notice for the date i,e, 22-10-2012 after anti-dating the case was sent under registered cover to the applicant/petitioner at his given address and was not received back in the office of the Commission as undelivered article therefore strong presumption had arisen that the same was duly served on the applicant/petitioner who despite service of notice failed to appear nor his learned Counsel when the case was taken up for hearing hence, the order dated 22-10-2012 is unexceptionable. He next submitted that no material whatsoever has been produced to rebut the presumption of due service of the notice of the date nor any request at any stage of the proceeding after filing the C.M.A. For restoration of the case till date has been made for production of evidence to rebut the presumption legitimately raised in the case. Reliance has been placed by the learned Counsel on the following case-law:--- (1)Muhammad Nawaz v. President, National Bank of Pakistan and others (2002 PLC (C.S.) 95).
(2)Executive Engineer v. Commissioner, Workmen's Compensation and others (1997 PLC (C.S.)
1044).
Masood Sadiq v. Haji Muhammad All (PLD 1968 Lahore 1201) and 3)Muhammad Ramzan and another v. Haji Karim Bakhsh and 5 others (1988 CLC 448).
8.In addition to the cited case-law, the learned counsel for the respondents also referred to the provisions of section 27 of the General Clauses Act, 1897 and argued that the notice sent under registered cover containing the notice for date i,e, 22-10-2012 posted at the given address of the petitioner with pre-paid stamps gave rise prima facie to the presumption that the same was duly served on the petitioner which he failed to rebut therefore, the application for restoration of the main case being meritless deserve to be dismissed. Further the learned counsel in the context of the presumption contended that such presumption was legitimately raised by the Bench in view of Article 129 of Qanun-eShahadat Order, 1984 while the case was dismissed for non-prosecution and that the notice posted at the correct address was duly delivered at the address and had reached to the destination. To supplement his contention, the learned counsel placed reliance on AIR 1975 Gujarat 54, 1962 MPC 439 (440) 1986 PLC 484, 1986 PLC 55 and 1987 PC r. LJ 180.
9. The contention canvassed on behalf of the parties learned Counsel have been considered in the light of the record of the case, their pleadings, case-law referred to by the learned Counsel for the parties as well as; provisions of section 27 of the General Clauses Act, 1897 and Article 129 of the Qanun-e-Shahadat Order, 1984, gone through carefully with their assistance.
10. It is an admitted feature of the case that in this case application simplicitor for recalling order dated 22-10-2012 on any of general grounds on which such applications are frequently filed and generally allowed, has not been filed but in the instant case a special plea has been taken that on anti-dating the case for 22-10-2012, notice was not delivered to the applicant/petitioner hence, the default on the part of the petitioner or his learned counsel to appear on the date was neither intentional or deliberate hence, dismissal of the case for non-prosecution on the said date deserve to be recalled which be restored to its original number. Secondly, during arguments it was submitted that since case was not fixed for hearing therefore, the order dated 22-10-2012 is not tenable in law and is required to be recalled. As regards the later contention, it may be noted vide order dated 5-10-2012 passed in C.M.A. No,7A(206) of 2012, the main petition was anti dated and was fixed for 22-10-2012 for hearing and notice was directed to be issued to the petitioner therefore, it cannot be said that the main case was not fixed for hearing. In view of this factual aspect of the matter, the cited case-law by the learned counsel for the applicant/ petitioner rendered no help to her contention on the point. Reverting to the former contention that notice for the date i,e, 22-10- 2012 was not delivered to the petitioner. It is worthwhile to note that as per record, notice under registered cover was issued to the petitioner at his given address on 16-10-2012. Office copy of .The notice shows that the same was sent to the petitioner at his correct given official address mentioned in the title of his petition and through this notice he was informed that the case has been fixed for hearing before the Bench on 22-10-2012 at NIRC Headquarter, Sector G-5/2, Islamabad. The order dated 22-10-2012 shows that the case was taken-up for hearing at 10-30 a.m.
And was called again and again but non appeared for the petitioner. Further it has noted that no intimation was conveyed by the learned Counsel for the petitioner of the reason of his failure to attend the matter and as none was present for the petitioner therefore, the main petition was dismissed for non-prosecution. Consequently the status quo order dated 22-5-2012 was also recalled.
In the given circumstances of the case as the notice for the date i,e, /2-10-2012 was posted with pre-paid stamps at the correct address of the petitioner which was not received back as undelivered article therefore, in view of the provisions of section 27 of the General Clauses Act read with section 129 of the Qanun-e-Shahadat and in the light of the case-law- cited by the learned counsel for the respondents legitimately it was presumed that the aforesaid notice was duly delivered to the petitioner which presumption could not be rebutted by the petitioner by leading evidence nor even at any stage of these proceedings any request was Made for production of material/evidence to rebut the same hence, the special plea as taken and argued on behalf of the petitioner appears to be devoid of any substance. Moreover, in paragraph No,3 of C.M.A. Seeking for the restoration of the case it was stated that neither the petitioner nor his learned Counsel (Mr. Abdul Hafeez Amjad) who was representing the petitioner was informed about the change' of the date and it was not specifically stated in this application that the notice for the anti-dated fixation of the case was not delivered to the petitioner and the special plea of the non-delivery of the notice to the petitioner for the first time was taken on 25-10-2012 during submissions when C.M.A.
No,7A(228) of 2012 was listed for hearing. In view of what has been stated and discussed hereinabove, the C.M.A. For restoration of the main case being meritless is dismissed and in consequence C.M.A. No,7A(262) of 2012 for interim relief pending disposal of the application for restoration of the case having become infructuous is disposed of accordingly.