1. NASIM HASAN SHAH, J.-This order will govern Civil Petitions for Special Leave to Appeal Nos. 974 and 975 of 1975.
2. In view of the order we propose to make in these cases, the following statement of facts will suffice :- The respondent Ch. Jamal Din was petitioner in both the matters in the High Court, out of which Civil Petitions for Special Leave to Appeal Nos. 974 and 975 of 1975 have arisen. The petitioners herein Anwarul Haq Khan was represented by the late Sh. Saeed Akhtar, Advocate. Both the writ petitions were fixed for hearing before the learned Single Judge of the High Court on 20-3-1975.
3. However, the name of Sh. Saeed Akhtar was not shown in the cause list. Hence no one appeared for Anwarul Haq Khan who was the respondent before the High Court and the petitioner herein. The learned Single Judge after hearing the learned counsel for the petitioners before him (respondent Jamal Din herein) allowed both the petitions with costs and quashed the order impugned before him vide a common judgment dated 20-2-1975. These petitions for leave to appeal are directed against the said judgment.
4. A large number of grounds have been urged before us in support of these Petitions for Leave to Appeal. The first ground, however, is that the impugned judgment of the Lahore High Court was passed ex parse against the petitioner. He had engaged Mr. Saeed Akhtar, Advocate, who had put in a written statement in the writ petition. However, when the writ petitions were listed in the cause list the name of the counsel did not appear in the list nor was any intimation sent to petitioner. The learned Judge in the High, Court overlooked this circumstance and ordered ex parte proceedings on 19-2-1975 and then allowed the writ petition vide judgment dated 20-2-1975. The petitioners has been condemned unheard and the judgment of the High Court is liable to be set aside on that short ground. A copy of the cause list dated 19-2-1975 has been placed on the record which, indeed, supports the contention of the petitioner.
5. The learned counsel for the petitioner in support of this plea relied upon a recent judgment of this Court in It.-Col. Mirza Munawar Beg, etc. v. Mst. Hassan Bibi and others (1981 SCMR 160). In that case, the writ petition was dismissed for non-prosecution as no one had appeared on behalf of the petitioner. However, it transpired that the full name of the counsel for the petitioner was not mentioned in the cause list and it was held, in these circumstances, that there was sufficient cause for his absence on the date of hearing. This Court held that in the aforesaid circumstances the writ petition, which was dismissed for non-prosecution should have been restored and disposed of on merits. The appeal was, accordingly, accepted and the order of the High Court refusing to restore the writ petition set aside and a direction issued that the writ petition filed by the petitioner in the High Court be heard on merits in the presence of the parties.
6. In this case also, we feel that the absence of the counsel for the petitioner to appear on the date fixed in the High Court was excusable. We also note q that the learned counsel died soon after the date of hearing and it was presumably for the said reason that no application could be filed for setting aside the ex parte judgment passed against the petitioner with the result that these Civil Petitions for Leave to Appeal were directly filed in this Court. However, herein the contention that the petitioner was condemned unheard has been raised and it was argued before us that the petitioner was deprived of the opportunity of representing his case before the High Court.
7. Mr. Inayat Hussain, who appeared for the respondents in one petition and Ch. Jamal Din, who appeared in person in the other case have been heard in reply to this contention.
8. We find force in the submissions of the petitioner that he has been condemned unheard by the High Court. We would accordingly convert this petition into an appeal and set aside the judgment of the High Court dated 20-2-1975 and remit both the matters to the High Court for decision afresh in the presence of both the parties.
9. As this is a very old matter, the High Court may consider the advisability of giving priority to these matters and for hearing them at an early date.
10. Parties are left to bear their own costs.