A suit for the recovery of Rs, 654,000/- under Order XXXVII Rules 1 & 2 of, CPC was instituted by the respondent against the appellant which was pending before the learned Additional District Judge Pattoki.
2. The appellant moved an application for leave to appear and defend the suit on 03.3.2012. This application was pending when on 16.8.2012 nobody appeared on behalf of the appellant before the learned Additional District Judge Pattoki and the application was dismissed for non prosecution.
3. An application for restoration of the application for leave to appear and defend the suit was moved on 10,9.2012 in which it was stated that the learned counsel for the appellant Malik Akhtar Javaid, Advocate did not appear on account of death of some relative and because of the long vacations of August. This application was dismissed by the learned Additional District Judge vide order dated 15.10.2012.
4. Through the instant F.A.O. the order dated 15.10.2012 passed by the learned Additional District Judge Pattoki has been assailed.
5. It is contended by the learned counsel for the appellant that he was the counsel for the appellant before the learned first appellate Court and he was on general adjournment granted by the High Court from 02.7.2012 to 05.9.2012. It is next contended by the learned counsel for the appellant that no affidavit controverting the contents of the application was sought from the respondent, nor was it presented before the learned first appellate Court. It is next contended that the impugned order passed by the learned Additional District Judge has resulted into miscarriage of justice and therefore be set aside.
6. I have considered the arguments of the learned counsel for the appellant.
7. The application moved for restoration of the application for leave to appear and defend the suit presented on 10.9.2012 has been placed as Annexure-F and has been perused. No specific relationship of the deceased on account of whose death the learned counsel for the appellant did not appear before the learned Additional District Judge is stated therein nor even the date of the death of. said relative is mentioned. It is further observed that perhaps due to the long vacations the learned counsel for the appellant did not appear before the learned first appellate Court and this is the only reason which is prominently readable from the application dated 10.9.2012. This application is not even supported by any affidavit of the learned counsel for the appellant. Even if the said factum of non submission of an affidavit by the learned counsel for the appellant is overlooked no reason has been mentioned as to why the appellant did not appear before the learned first appellate Court. The concept of general adjournment was not brought to the notice of the learned Additional District Judge and was not even mentioned in the application moved for restoration of the application for leave to appear and defend the suit. The learned Additional District Judge recorded the following reason in the impugned order dated 15.10.2012 for dismissing the application moved by the appellant for restoration of the application for leave to appear and defend the suit: "I have gong (gone) through the record and considered the arguments. According to order passed my learned predecessor dated 16.08.2012 due to non appearance of defendant his application for leave to appear and. defend was dismissed in default of prosecution and he was proceeded against ex-parte. Said ground recorded in the petition for restoration of application to appear and defend the suit is that on the date of hearing learned counsel for the defendant could not appear due to death of some relative. However, no reason for the absence of defendant himself has been recorded in the application. Moreover, the said application is not supported by any of davit of the defendant in support of this petition. So, in the given circumstances `I have no reason to accept the application and the same is hereby dismissed. Now to come up for ex-parte evidence of the plaintiff be put up on 24.10.2012.
8. It is a case of sheer negligence by both the learned counsel for the appellant as well as by the appellant. No illegality is found in the impugned order dated 15.10.2012 nor any such illegality is pointed out. The-order passed by the learned Additional District Judge is based upon sound reasons as per record of the case. The instant F.A.O. being devoid of any merits is dismissed in limine.