1. MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought from order dated 26-4-X981 of the Lahore High Court whereby a Regular Second Civil Appeal (No. 160) was restored to its original number for regular hear--ing-it had earlier been dismissed for non-prosecution on 7.7-1980 on account of non-appearance before the High Court from the respondent's (appellant) side.
2. Regular Second Appeal No 160 of 1980 was admitted to regular hearing on .17-3-1980 with the direction that the question involved therein being short, the same "shall come up for final hearing within two months". On 13-4-1980 a miscellaneous petition filed from the petitioner's side came up for considera--tion when on the request of her learned counsel, the main appeal was ordered to be fixed for final hearing on 6-5-1980. It appears that some time was taken by office in procuring the records and the appeal came up for regular hearing on 1-7-1980. The clerk of the learned counsel for the appellant appeared with an explanation for absence of the counsel and the case was adjourned and fixed for hearing next day at "8-30 a.m. Sharp". On the next day i.e. 2-7-1980, the learned counsel for respondents was present in Court. The learned counsel for the present petitioner was absent. The special attorney of the petitioner, however, was present, who made a request for adjournment with the statement that "his counsel is not available today". As no objection was raised from the respondents' side by their counsel, the case was adjourned to 7-7- 1980 when the appeal was dismissed for want of prosecution. An application was moved for restoration. According to the learned counsel for the petitioner, on 20th July, 1980, while the index of this petition shows that it was filed on 17-7-1980. Be that as it may, the assertions made therein purporting to furnish the grounds for restoration, were enquired into and ultimately it was allowed by order dated 26-4-1981 ; which has been impugned in this petition for special leave to appeal.
3. The main ground taken in the application for restoration was that the clerk of the learned counsel for the respondent appeared in the Court where the appeal was fixed on 7-7-1980 at 8 O'clock in the morning and informed the reader that the counsel was busy before another bench of the High Court. The clerk of the counsel, it was further asserted, again appeared in the said Court where the appeal was fixed, at 8-30 a.m. But the case had not by then been taken up. The counsel remained busy before the other bench. Anal when he was free from that engagement (in an appeal) be came to the Court where the appeal was pending at 9-30 a.m. But was informed that the same had been dismissed for non-prosecution. It was also specifically asserted that "the counsel and his clerk remained vigilant throughout ; there was no intentional default on their part ; and that, the counsel was prevented from appearing on account of his engagement in another Court with a further assertion that the respondents (appellant before the High Court), were not aware of the date and "the matter was totally in the hands of the counsel who showed vigilance throughout".
4. The application was filed through Rana Abdur Rahim, the same learned counsel who was to appear in the appeal and on account of whose absence, it was dismissed for non-prosecution. It was supported by an affidavit sworn by Allah Ditta, the clerk of Rana Abdur Rahim, Advocate.
5. A reply was submitted from the present petitioner's side through the same learned counsel who was already appearing on their behalf in the High Court in the appeal proceedings and whose presence was noted on the day the appeal was dismissed for non-prosecution. A preliminary objection was taken that the application for restoration should have been filed under Order XLI, rule 19 and not under Order IX, rule 9. Preliminary objection was also taken with regard to the effect of the order passed on 21-7-1980 regarding deposit of process fee, (which had not been complied with) for issuance of notices in civil miscellaneous applications. On merits in para--wise replies to the application for restoration, the stand taken by the petitioner was that "nobody on behalf of the learned counsel (Rana Abdur Rahim) came to the Court at 8-00 a.m. ; that the reader was questioned by the learned Judge whether any intimation had been received on behalf of the counsel or not and the reader replied in the negative" ; and further that it was thereafter that the case was called out and there being - no response, the appeal was dismissed in default. The other assertions made in the applica--tion were also denied with a counter-assertion that the case was called at 8-30 a m. Sharp and that "ten to fifteen minutes were spent in calling the case" and that nobody had turned up by then. It was denied specifically in the reply that the case was not taken up by 8-30 a.m. It was dismissed at 8-45 a.m. An objection was also taken in the reply with regard to the failure of Rana Abdur Rahim to file an affidavit to the effect that he was appearing in another Court in some other appeal. It was further pointed out in reply that the particulars about the other appeal and the bench were not mentioned in the application for restoration. The fact that the restoration application was not moved on the same day and that more than two weeks were taken for filing the application was also pointed out. This reply was supported by a short formal affidavit by Muhammad Shabbir, special attorney of the present petitioner.
6. It is important to note that none of the learned counsel appearing for the parties in the High Court submitted his own affidavit in support of the assertions made in the application and the reply and further that none of them offered to become a witness during the inquiry. An application was submitted from the petitioner's side on 20-11-1980, as stated therein after two days of hearing of the arguments praying, therein that "the two deponents who had filed affidavits in support of the application for restoration" namely. Dewan (respondent No. 2 herein) and Allah Ditta, the clerk of the counsel, be directed to appear "to stand cross-examination and further that Rana Abdur Rahim be directed to file his own affidavit". There is nothing on the record to show that the Court ever directed Rana Abdur Rahim or for that matter Mr. Yusuf Ali Khan, the learned counsel appearing for the present petitioner, to file their personal affidavits. And as noted earlier, they did not consider it necessary to offer the same voluntarily.
7. However, there is a reply on the record submitted by Rana Abdur Rahim stating therein "the second request made in this para for the filing of deposition by the counsel is uncalled for. Rather it is in bad taste. It is against the professional ethics that the counsel are drawn into acrimonious wranglings. They should not be treated like parties and this request of the respondent is liable for rejection". The order dated 18-2-1981 which is now interpreted .By the learned counsel for the petitioner as deciding this con--troversy, does not contain any direction by the Court or even an indication in that behalf to the effect that Rana Abdur. Rahim was required to file his affidavit. In fact, there is nothing therein to indicate that the Court desired any of the counsel to submit his personal affidavit.
8. The learned counsel has taken us through the cross-examination conducted by him on Allah Ditta, clerk of Rana Abdur Rahim who had offered himself for cross-examination. The cross-examination which took place on 4-3-1981 is no doubt searching and detailed but after hearing the learned counsel at considerable length, he has not been able to satisfy us that that the assertions made by the clerk in his affidavit, were false.
9. The learned Single Judge in the High Court took note of the plea taken in the application for restoration as also the plea of the present petitioner. The impugned order is not detailed but it appears that the argument advanced from the respondents' side that the counsel for the respondents was not negligent in prosecuting the appeal and even if he would have been negligent, his clients should not be allowed to suffer on account of his negligence', was noted with approval. The ruling of this Court in Seth Shivratten G. Mohatta and another v. Messrs Mohammadi Steampship Co. Ltd. PLD 1965 SC 669 was also noticed in this behalf.
10. The learned counsel, amongst other arguments, has criticised the approach of the learned Single Judge in the High Court in passing a short order in a contested application for restoration of an appeal. It is true that the restora--tion application was seriously contested from the petitioner's side but we do not agree with the learned counsel that the disposal of a restoration applica--tion must be through a detailed judgment. If in a case like the present one, the main pleas are noticed and the parties are heard in support of the main pleas, the mere fact that the order of disposal of the restoration controversy is short, would not render it invalid.
11. During his lengthy arguments, the learned counsel took us through the record of this petition and pointed out various aspects which according to him, would show that Allah Ditta the clerk, had told a lie with regard to the engagement of his counsel, Rana Abdur Rahim; before another bench at the relevant time. It is not necessary to deal with them one by one in this judgment. As already noted despite the lengthy cross-examination-on Allah Ditta, it was not established that the affidavit submitted by him was false. The criticism of the learned counsel that Rana Abdur Rahim did not submit his own affidavit nor did he offer himself as a witness in the inquiry would equally apply to the learned counsel appearing for the petitioner. The expla--nation offered before us that the learned counsel for the petitioner had drafted the reply on behalf of his client, therefore, the said reply should have been given due weight as containing, at least indirectly, the statement of a lawyer, is of not much avail to the petitioner ; because the same would apply to the application for restoration drafted by Rana Abdur Rahim on behalf of the respondents ; which contained the assertion regarding his engagement before another Bench. It appears that the learned Judge in the High Court refrained from directing any of the learned counsel to submit his own affidavit. In the circumstances of this case, the approach in this behalf was unexceptionable.
12. Regarding the factual aspects of the case, it needs to be noticed that one short way of rebutting the assertions made by the clerk of Rana Abdur Rahim during cross-examination (wherein details and particulars were furnished regarding appearance of Rana Abdur Rahim before another bench), was a resort to summoning or the production, of the relevant cause lists and the disposal/register as also the attendance noted in the cases before the other bench. This was not done in the High Court nor an attempt was made when filing this petition to submit that material. In these proceedings, however, we did not consider it necessary (after hearing the lengthy arguments of the learned counsel for the petitioner) to adjourn the petition for summoning it, nor was it found necessary to hold any further inquiry. It further needs to be observed that the stand taken by the learned counsel that the High Court should have called upon the petitioner to furnish such evidence in rebuttal is untenable. If an application could be made seeking a direct to Allah Ditta deponent to submit for cross-examination, an application could also be mad from the petitioner's side for summoning of the relevant material. The Court was not bound formally to call upon the petitioner to furnish rebuttal. A similar contention was repelled in Jamal Din and another v. Ramzan and another 1982 SCMR 471 Another point sought to be raised from the petitioner's side was that the appeal in question was of more importance particularly in the background of its previous hearings, than the appearance of Rana Abdur Rahim before another bench on the assumption that he did appear before the other bench. It cannot be held that be should not have done so. There is nothing on the record to impute even carelessness to the said learned counsel in deciding the priority, when he had made due arrangement by sending his clerk to one bench and himself appeared before another bench. There was no question of negligence. The assertion of bad motive in this behalf is beyond imagination. A similar contention has been raised on account of the fixation of the case at 8-30 a.m. On a previous date that the counsel for the respon--dent should have appeared in this case on the adjourned dates also at 8-30 a.m. And should have ignored the other case. This argument is also untenable. On first adjourned date what to talk of appearance at 8-30 a.m., the learned counsel for the petitioner himself had absented and his client did not disclose any reason for the absence. The fixation of the time on 1-7-1980 for 2-7-1980, in our view was not applicable for the next date i.e. 7- 7-1980. The hypertechnical objection that the application for restoration should have been made under Order XLI, rule 19 and not under Order IX, rule 9 is also without any force because mentioning of a wrong provision in a pleading (which otherwise is flawless) would not, normally render it invalid.
13. Regarding factual aspects of the case, after careful examination of the material placed before us, we feel satisfied that tie non-appearance of the learned counsel for the respondents on 7-7-1980 was not due to his negligence and further that notwithstanding his vigilance, it appears, he made an honest mistake in calculating and making estimates regarding timings for appearance before different Benches of the High Court. We also hold that he had made arrangements for informing the reader of the bench which was to bear the appeal, about his engagement before the other bench. Apart from the factual aspect of the case, however, learned counsel for the petitioner has raised a legal issue that the impugned order instead of exonerating the counsel for the respondents has found him guilty of misconduct and notwith--standing the same, the appeal has been restored. We do not agree with the learned counsel in this behalf. On the contrary, we do not find any such finding. The reliance of the learned counsel for the petitioner on the phrase used in the impugned order-"if he was negligent, appellants should not suffer on account of negligence of the counsel" has to be read as an alterna--tive observation. It was pre-fixed with the word "even". In a recent judg--ment Jan Muhammad v. Muhammad Asghar PLD1981SC513, it was observed that in a restoration application the plea like the one taken from the respondents' side before the High Court in this case, would undoubtedly be worth considera--tion. The plea taken in that case which involved the dismissal for non--prosecution of a civil revision petition in the High Court, was that the counsel concerned was to appear in the High Court as also in the Supreme Court at Lahore, on the same day. He (the learned counsel therein) had explained "he had made the usual assessm ent and estimate of time that the revision petition, which was itself a notice case, was not likely to reach during the early hours of the day and that is why he remained present in the Supreme Court where two of his cases were listed for hearing, one at No. 2 and the other at No. 5."
14. In view of the order passed by this Court in the said case, the correctness or otherwise of the factual aspect in the aforequoted plea raised, was not commented upon ; it was clearly observed that the same "would undoubtedly be worth consideration". We will reiterate the same view. Such an explana--tion offered by a learned counsel is not only worth consideration but when established, can also, be made the basis for restoration because mere consideration without any results based on that consideration, would be an exercise in futility. In this case after due consideration of the plea taken by the learned counsel for the respondents in the High Court, and after hearing the learned counsel now, we feel there was no cogent reason for its rejection. This petition fails and is accordingly dismissed.
15. Before parting with this judgment, we would like to put on record a very serious question of which due notice was taken by this Court during the hearing of the petition. Learned counsel for the respondent caveator, pointed out that the language used in sub-para. (a) of para, 17 in the 'Grounds' part of the petition for leave, contained highly objectionable words relating to the learned Judges of the High Court. After perusal of the same, we felt that there was no justification or basis for use of such language and that being so, apart from any other action that might be just and proper, we thought that a party and/or its counsel using such language, would lose the right of hearing, or at least of oral arguments, in the same hierarchy and comity of Courts where the matter is brought for re-examination. This view was put to the learned counsel for the petitioner who without any hesitation and without taking any time and we might add with some amount of grace, immediately requested for the deletion of the said sub-paragraph (a) from the petition.
16. Learned counsel for the caveator made similar submission with regard to sub-para. (h). The response of the learned counsel in this behalf was also the same. This time he further added that if there are any other words or paragraphs which are found to be objectionable, the same may also be treated as deleted. We passed verbal orders accordingly which are now hereby affirmed. It is also directed that the office should not issue any copy of any part of the record of the petition which contains the objectionable material. The office is further directed to scrutinise the record and point out any objectionable part thereof for orders. These orders are without prejudice to any action in law, which might otherwise be permissible.
17. At the time of the announcement of the decision of the main petition, learned counsel for the petitioner made a request that an observation might be made for early disposal of the main appeal, which was restored through the impugned order. We have already noticed that even in the admitting order passed by a learned single Judge in the High Court on 17-3-1980, it was noted that the question involved in the appeal was short and that the same was to be fixed for final hearing within two months of the said date. The request of the learned counsel is reasonable. It would be in the interest of justice if the direction contained in the admitting order dated 17-3-1980 is observed by all concerned, in letter and spirit.
18. With the foregoing observations and the above directions/orders, this petition is dismissed.