CH. MUHAMMAD IBRAHIM ZIA, C.J.-- -The above titled appeal by leave of the Court arises out of an order of the High Court dated 27.09.2017, whereby restoration application filed by the appellant, herein, has been dismissed.
2. Precise facts of the case are that the respondents herein, filed a declaratory suit against the appellant, herein, before the Senior Civil Judge Bhimber on 12.01.2006. The said suit was decreed vide judgment and decree dated 30.04.2010. Feeling dissatisfied, the appellant, herein, filed an appeal before the District Judge Bhimber on 22.05.2010, which was also dismissed vide judgment and decree dated 14.12.2 010. Against the judgment and decree of the District Judge the appellant filed second appeal before the High Court. On 26.05.2016, the learned High Court dismissed the said appeal having not been pressed. The appellant, herein, filed an application on 31.08.2017 for recalling the order dated 26.05.2016 and restoration of the appeal. The learned High Court dismissed the application while treating the same as review petition through the impugned order dated 27.09.2017, hence this appeal by leave of the Court.
3. Raja Muhammad Nadeem Khan, Advo cate, the learned counsel for the appellant after narration of necessary facts submitted that the learned High Court has fell in error of law while dismissing the appeal in default through order dated 26.05.2016. The order on the face of It appears to have been passed without application of judicial mind. Neither any junior was directed by the counsel, to represent the appellant nor his name is mentioned in the order . Moreover , before the High Court the appeal was pending but through the dismissal order the writ petition has been dismissed. He further submitted that the application filed by the appellant for restoration of the appeal has been dismissed on the ground that it is a review petition and filed without complianc e of the mandatory requirement of rules relating to the review , whereas, in fact the application was filed for restor ation of the appeal dismissed in default. It was not a review petition. However , when he was confronted regarding the delay of almost one year and three months in filing the application, he submitted that the appellant was abroad. His counsel had no knowledge of dismissal order . When the appellant returned to Pakistan he got knowledge of the dismissal order and filed the application for restoration of the appeal. He submitted that the reasons extended in the application were sufficient but the learned High Court illegally dismissed the same, therefore, while accepting this appeal the impugned order be recalled the appeal be restored for hearing on merits.
4. Conversely , Hafiz Fazal ur Rehman Dar and Ch. Rashid Rasheed, Advocates, the learned counsel for the respondents strongly opposed the appeal on the ground that the arguments advanced on behalf of the appellant are misconceived. The appellant has himself furnished the copy of case diary of his counsel which negates his plea taken in arguments and the application. On the very day of passing of the order , the counsel for the appellant was in knowledge of dismissal of the appeal. According to the settled principle of law, knowledge of the counsel is the knowledge of the party . The whole story mentioned in the application is baseless, afterthought and concocted. If the counsel for the appellant remained negligent and has not duly pursued the case, the appellant may seek remedy against him but neither the Court can be blamed nor the accrued right of the other party can be snatched.
Therefore, this appeal is liable to be dismissed.
5. We have considered the arguments of learned counsel for the parties and examined the record made available.
So far as the argument of learned couns el for the appellant regarding the impugned orders, is concerned, it has substance to the extent of typing mistake and omissions such like mentioning of writ petition instead of appeal and dismissal of the restoration application while treating the same as review petition. In the dismissal order the writ petition has been inadvertently mentioned which is mere a clerical mistake.
6. The learned High Court has dismissed the application while treating the same as review petition. For filing the application for re-admission of the appeal dismissed in default the specific provisions of Order XLI, Rule 19, C.P.C. are on the statute book. The application for re-admission of appeal falls under the said provisions and not the review petition. To this extent the learned High Court has fell in error of law while treating the application as review petition, however , according to the nature of the dismissal order it can be treated as review petition as the appeal was dismissed as withdrawn and not in default. Even otherwise it makes no difference as the appellant has failed to bring on record any legally acceptable sufficient cause for non-appearance and filing the application after a period of one year and three months. It was enjoined upon the appellant to approach the Court within time by fulfilling the statutory requirements of rules. In this context, the impugned judgme nt is valid one and not suffering from any illegality .
7. The stand taken by the appellant is also negated from his own produced record. The copy of the case diary of the counsel has been furnished as annexure "PI" along with the memo of appeal (available at page 34) which clearly speaks that on 26.05.2016 the appeal titled "Abdul Hameed Khan v. Kalsoom Bibi" was withdrawn and consequently dismissed. Thus, even from the record produced by the appellant it is proved that the appeal was withdrawn. If the counsel for the appellant has withdrawn the appeal without authority , the appellant should seek remedy against the counsel but the Court cannot be blamed and the other party can also not be penalized. As there is no sufficient cause for nonappearance and filing the application after such a long delay , thus, filing of this appeal is a futile exercise.
For the above stated reasons, finding no force, this appeal stands dismissed. No order as to costs.