C.M. No,4178 of 2011 MUHAMMAD FARRUKH IRFAN KHAH, J.---Through this C.M. The applicant seeks restoration of Constitutional petition No,12091/10 which was dismissed on 20-10-2011 for non-prosecution.
2. Learned counsel for the applicant submits that neither the applicant nor his counsel received any notice regarding fixation of Constitutional petition; that Mr. Talat Farooq Sh. the then Advocate of the applicant tendered his affidavit in this regard; that the applicant was astonished to receive a show cause-cum-personal hearing notice for imposition of major penalty of compulsory retirement/dismissal from service as this Court has restrained the respondents to pass final order; that in order to bring this fact to the Court when the applicant intended to file a C.M. Under section 151 of C.P.C. For suspension of operation of impugned show cause notice then it came to his notice that the Constitutional petition has been dismissed for non-prosecution; that the valuable rights of the applicant are involved in the lis and the applicant shall suffer irreparable loss if the Constitutional petition is not heard and decided on merit; that non-appearance of the applicant or his counsel on the fixed date is neither deliberate nor intentional; that even otherwise it is settled law that the matters should be decided on merit and not on the technicalities. Relies on Water and Power Development Authority v. Muhammad Hayat Khan and 7 others (PLD 1986 Peshawar 81) and Shamim Khan v. Islamic Republic of Pakistan and others (2010 YLR 2196).
3. Conversely, learned Law Officer vociferously submits that there is three days' delay in filing of application for restoration of Constitutional petition; that the application is not accompanied with the application for condonation of delay as such the delay cannot be condoned; that the affidavit of Mr. Talat Farooq Sh. Advocate has no value as though the petition was filed by the said learned counsel yet during the proceedings the applicant engaged Rai Usman Ahmad Advocate who filed C.M.No,2863-2011 on behalf of the applicant meaning thereby that Rai Usman Ahmed Advocate superseded the previous counsel; that the affidavit of said Rai Usman is not available on the record; that the applicant deliberately and intentionally did not appear in the Court on the fixed.
Date; that valuable rights have been accrued in favour of the respondents as such no indefinite period could be allowed in such case; that no sufficient cause is available to the applicant for condonation of delay and restoration of main writ petition. Relies on Khushi Muhammad v. Member, Board of Revenue and others (2008 5CMR 358) and Messers Texzone v. The Additional Collector of Customs Export Collectorate, Custom House, Karachi and another (2006 CLC 1434).
4. Learned counsel for the respondents Nos.7 to 11 adopted the arguments advanced by the learned Law Officer.
5. Arguments heard. Record perused.
6. First of all I would like to deal with the objection of the learned Law Officer that affidavit sworned by Mr. Talat Forooq Sh. Senior Advocate has no value as Rai Usman Advocate has superseded the said counsel. Cause list for 20-10-2011 was requisitioned according to which name of Mr. Talat Farooq Sh. Advocate is appearing in the cause list and the name of Rai Usman Advocate is not printed on the same. Furthermore, neither formal NOC regarding supersession of earlier counsel is available on the record nor Mr. Talat Farooq Sh. Advocate ever made any request for withdrawal of his power of attorney, therefore, it cannot be said that Mr. Talat Farooq Sh. Advocate was not the counsel of the applicant. Even if for the sake of arguments it is presumed that Mr. Rai Usman Advocate was the original counsel of the applicant then it would further strengthen the case of the applicant that no intimation was given to his counsel regarding fixation of the case as the name of said learned counsel does not appear in the cause list.
7. Mr. Talat Farooq Sh. Senior Advocate has tendered his affidavit to the effect that his office did not receive the cause list regarding, fixation of the writ petition and in my considered view this affirmation should be given due weightage. Reliance in this regard is placed on Muhammad Nazir and others v. Muhammad Sadiq and others (1989 PCr.LJ 1005) wherein it has been held as under:- "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."
8. Furthermore, no counter affidavit in this respect has been tendered by other side, therefore, the averment of the affidavit that the petitioner's counsel did not receive any intimation regarding fixation of Constitutional petition is to be accepted as admitted by the respondents in the absence of any counter affidavit. It is well settled law that where a party is required to deny any fact on Oath and if it fails to deny the same then it will amount to admission. Reliance is placed on case-law reported as Abdul Latif v. Muhammad Yousuf and 2 others (PLD 1996 Karachi 365). Much sanctity is attached to an affidavit filed by such a Senior Advocate like Mr. Talat Farooq Sh. And the reasons explained in the affidavit of an Advocate of his stature can be treated as sufficient cause.
9. Now coming to the question whether in the absence of formal application of Section-5 of the Limitation Act, 1908 benefit of said Section can be extended to the applicant. No doubt according to the provisions of Article 168 of the Limitation Act, 1908 statutory period for re-admission of an appeal dismissed for non-prosecution is 30 days from the date of its dismissal. In the instant case, Constitutional petition was dismissed on 20-10-2011, whereas, the applicant has filed the instant C.M. On 22-11-2011 with a delay of three days. In case reported as Sarwar Khan v. Mir Ali and 10 others (1980 CLC 110) it has been held as under:-- "The first appellate Court, in the instant case, did not enlarge the period of limitation for extension of the time. We are conscious that there are authorities irr support of the view that without an application for enlargement of the time the Court should not condone the delay but the law laid in an authority primarily applies to the peculiar circumstances of that case. To the contrary there are also authorities in support of the view that the Court, in the circumstances of certain case, could suo motu enlarge the time and condone the delay . In Mst. Kulsoomun Nissa and another v. Noor Muhammad alias Sultan Haider and another (1) it was observed at pages 667 and 668 of the report as follows:-- "The first ground on which the appeal has been dismissed by the lower appellate Court is that the plaintiffs had not made any formal application for an extension of time under section 5, Limitation Act, and that, therefore, their appeal against Hakim Shyam Sundar Lal was beyond time. In our opinion the Court below has erred in exercising its discretion in this matter. The reason why Hakim Shyam Sundar Lal's name was omitted from the names of the respondents obviously was that his name did not find a place in the decree. He was impleaded later on within 30 days of the substitution of his name. We think that the lower Court should have allowed the defendant to get round the technical objection of the absence of a formal application for extension of time."
10. There is no cavil with the proposition that the benefit under section 5 of the Limitation Act, 1908 can only be availed if a party has acted in good faith and with due diligence. Each case proceeds on its own facts, therefore, diligence and good faith would be determined on the facts of each case and no formula of universal application can be laid down in abstract form. Reliance is placed on Karachi Electric Supply Corporation Ltd. v. Lawari and 4 others (PLD 2000 SC 94) wherein it has been held as follows:-- "Diligence is a state of human conduct. What should be the standard for assessing the behaviour of an appellant to style him as diligent. Because of fluidity of the notion of diligence, it is difficult to set up a precise yardstick. Whether or not litigant has acted diligently and with care, would differ from case to case. Speaking broadly, a person may be said to have acted diligently, when he has informed, himself of all relevant factors taken all obvious steps and precautions, characterized by a degree of effort, as in a given situation, a reasonable person would do. But, the epithet of reasonable, opens wide the measure of application of this yardstick, on the factual plan, for the word 'reasonable' is not susceptible of any precise definition. Etymologically, it signifies according to reason, which expression itself is open to difference of opinion. Whether or not a person has acted diligently in ultimate analysis, would depend on the circumstances of each case and cannot be determined on the foundation of any judicial syllogism."
11. In the present case there is a delay of 3 days in filing of application for restoration of Constitutional petition. The said delay has been explained by the applicant to have been caused due to a justifiable reason. In case reported as Muhammad Bashir and another v. Province of Punjab through Collector of District Gujrat and others (2003 SCMR 83) it has been held that "discretion to condone the delay is wide enough in a Court depending on variety of factors, particularly, sufficient cause shown by a party to the satisfaction of the Court. No hard and fast rule can be laid down to tie down the hands of a superior Court. Superior Courts always act in aid of justice other than to it, subject however, to the law and the Constitution. Technicalities of law are always avoided and discouraged in order to do complete justice and to ensure that justice is not only done but also seen to have been done. Rules of procedure are enacted for fostering the ends of justice and preserving the rights rather than to stifle the dispensation of justice and unless they are insurmountable, ends of justice always outweigh the manner of practice and procedure." The reasons stated in the application accompanied by the affidavit of the learned counsel is sufficient to condone the delay. Case-law referred to by the learned Law Officer is distinct and not applicable to the circumstances of present case as has been held supra that each case is to proceed on its on peculiar circumstances.
12. Resultantly, this C.M. is allowed as a result whereof the main Constitutional petition is restored to its original number subject to payment of cost of Rs,10,000/- to be deposited by the applicant in the dispensary of this Court till the first week of May, 2012 and thereafter the office shall fix the main writ petition.