' This is an application for restoration of the petitioner, which as dismissed for non-prosecution vide order dated 12.11.2013.
2. The learned counsel for the applicant submits that on the ate in question, the petitioner was out of station and had instructed is counsel to appear in this Court. The learned counsel met with a road accident, in consequence of which, he was not present when the case was called, which resulted in dismissal of the same. He argues hat the petition is at its early stages and no prejudice would be caused o any of the parties by restoration of the same. Further, the application for restoration was promptly moved on 16.11.2013 i.e. Four days after the order of dismissal was passed, therefore, the application is liable to be allowed.
3. The learned counsel for the respondent, on the other hand, submits that this is the second time that the petition has been dismissed for non-prosecution. He points out that earlier this petition was dismissed on 10.10.2011. However, it was subsequently restored on payment of costs of Rs.5000/-. He submits that even on 24.09.201 the learned counsel for the petitioner did not appear, in consequence which the matter could have been dismissed, however, this Counrt showed grace and did not dismiss the petition. He, therefore, argue that the conduct of the petitioner dis entitles him to restoration of the petitioner. The learned counsel further submits that the argument that the learned counsel for the petitioner met with a road accident which prevented him from appearing before this Court, is n supported by any evidence. Further neither an affidavit of the clerk o the learned counsel has been placed on record, nor any affidavit of th associate who was allegedly directed to attend the case, has bee produced. He finally argues that the application was not immediate moved and the petitioner waited for at least four days befor approaching this Court for restoration of his case.
4. I have heard the learned counsel for the parties and gone through the available record. It appears that the petition w dismissed for non-prosecution. The name of the learned counsel ha appeared in the cause list. The argument of the learned counsel for th petitioner that he met with an accident and was therefore delayed I reaching this Court is duly supported by his affidavit.
There is no value reason for this Court to disbelieve an affidavit, which has been shwo by a learned counsel of this Court and is also supported by an affidavite of the petitioner. The Hon'ble Supreme Court of Pakistan in a numbe of cases including Seth Shivrattan G. Mohatta and another vs. Mess Muhammadi Steamship Co. Ltd. (PLD 1965 SC 669), Babu jai Muhammad and others vs. Dr. Abdul Ghafoor and others (PLD 196 SC 461) and Muhammad Haleem and others vs. H.H. Muham Naim and others (PLD 1969 SC 270) has held that if the counsel h met with an accident and the matter has been dismissed for no prosecution, the same constitutes sufficient basis for restoration of the petition. It has already been held above that I have no reason t disbelieve the stance taken by the learned counsel for the applicant Even otherwise, the matter is at its initial stages. No prejudice would be caused to either side if the matter is restored. Law favour adjudication of the matters on merits and discourages non-suiting parties on the basis of technicalities. However, the fact that this petition has been dismissed for non-prosecution the second time, furnishes justification to impose costs on the petitioner in view of the fact that even the first time when this petition was dismissed for non-prosecution on 10.10.2011, the same was restored subject to payment of Rs.
10,000/- as cost.
5. In view of the foregoing, subject to payment of Rs. 10,000/-costs, which shall be deposited with the Lahore High Court Bar association Diagnostic Centre within seven days from today, this application is allowed and the petition is restored to its original number. Receipt indicating payment of the aforesaid amount shall be placed on record before the next date of hearing.
6. Let the main petition be, listed for hearing in the third week of May, 2014.