This is a petition filed under section 151, C. P. C., praying that the order passed by me on 20-3-1973 dismissing Writ Petition No. 897 of 1970 be recalled.
2. The circumstances giving rise to these proceedings are that when the writ petition came up before me for motion hearing on 16-3-1973, Mr. Yusuf Ali Khan, Advocate, who had by then been engaged to represent the petitioners, was not present. Request. Was made on his behalf that the case be adjourned on the ground of his illness. The learned counsel appearing for the respondents had brought to my notice certain circumstances on the basis of which, white adjourning the case to 20-3-1973, I directed that "learned counsel for the petitioners should come prepared to show cause why this petition should . Not dismissed for (prima facie) effort having been made to conceal vital facts in the memorandum of the writ petition". On 20-3-1973, none appeared on behalf of the petitioners for they themselves appeared. Mr. Virasat Hussain Naqvi, Advocate, was present on behalf of respondents 1 to 5. A communication in writing signed by Mr. Yusuf Ali Khan was, however, received by my Reader before the case was taken up for hearing,, wherein it was mentioned that he (Mr. Yusuf Ali Khan) "had a severe relapse of influenza last Friday, and have been confined to bed until this morning and for that reason have not been able to attend to any work. At the same have to appear in mufti. It is thus not possible for me to appear even to request for an adjournment personally. Kindly request his Lordship to adjourn the case until Monday or Tuesday". The Reader placed the communication before me. I noticed the same but refused to adjourn the case and dismissed the petition for non-prosecution. In my order dated 20-3-1973, I took note of the fact that by my order dated 16-3-1973 1 had required the learned counsel for the petitioners to meet the objection qua concealment of facts raised by the other party. I also noted that the respondents "have put in material to support the allegation that the petitioners concealed vital information thus prima facie they have not come before this Court with clean hands i.e. The reason why an effort has been made to delay the hearing of this probably petition. With regard to the application for adjournment I observed that it was self=contradictory because if the learned counsel could appear before the Supreme Court and the relapse of influenza was not hinderance, he could have appeared in the Court as well. I further observed that non-availability of robes was not an insurmountable hurdle. Keeping these circumstances in view the petition was dismissed for non-prosecution.
3. On motion hearing on this application; Mr. Yusuf Ali Khan explained, and I noted in my order dated 3-4-1973, that "he had on the very day that this petition was dismissed namely, 20-3-1973, appeared in this Court after the order had been passed and bad explained that he was not feeling well". As this statement of the appearance of the learned counsel, after I had passed the order and his having mentioned that he was not even then feeling well, was factually correct, therefore, I issued notice of this application to the counsel for the respondents. On 12-6-1973, Mr. Yusuf Ali Khan was examined on questions relevant to the disposal of this application. His position as it emerges from the contents of this application as also his statement, is that on account of his illness he was unable to prepare the case and, therefore, an adjournment was being sought and he could not himself appear in Court to seek adjournment because he was to appear before the Supreme Court and also because he was not in robes. It has also been explained that in the Supreme Court as he was to appear in his own personal matter, therefore, it was not necessary for him to wear the robes.
It has also been explained that no preparation was needed by him in so far as the matter before the Supreme Court was concerned because, in fact, no lengthy arguments were to be addressed.
He has placed a certified copy of the order passed by the Supreme Court on 20-3-1973 in his personal matter. It appears, that no lengthy arguments were addressed by him.
4. The fact that the learned counsel had been ill finds support from the order dated 16-3-1973 when adjournment was sought on account of his illness. I remember that after I had passed the order on 20-3-1973, learned counsel appeared in Court and had coushed once or twice. This is the reason why I admitted this application by my order dated 3-4-1973. Considering all the circumstances, I hold that there is nothing to contradict the statement made by the learned counsel that on account of previous A illness he was unable to prepare the case. I have also no reason to dis-- believe his statement that he had not to prepare his own case in which hel, was to appear before the Supreme Court on the same day. The order of the Supreme Court, as already noted, supports him in this behalf. The only remaining objection left to be considered is that the counsel should have shown courtesy to this Court and if he was in a position to move about he should, have appeared in this Court and might have sought the adjournment on the ground of lack of preparation due to illness. The explanation offered b the learned counsel is that he was not in robes. It appears that his attendant before the Supreme Court without robes was not objected to.
Therefore, it was not necessary for him to wear the robes for that appearance and if h was to seek only an adjournment from this Court, which he did by sending a written application, his formal appearance in the case particularly when he was not in robes is excusable. Considering all the circumstances, I have corn to the conclusion that the non-appearance of Mr. Yusuf Ali Khan on 20- 3-1973 in this Court was not intentional with any ulterior motive.
5. Learned counsel for the respondents has laid stress on the point that it was necessary for the petitioners in the absence of their counsel to have appeared. Technically speaking, there is some force in the argument, but the petitioners having engaged a counsel, who had taken responsibility of appearance before this Court, unless they were informed by him (their counsel) that they were to appear in person, they could not have thought that their presence was necessary. If the learned counsel would have appeared the writ petition would not have: been dismissed for non- prosecution, in these circumstances therefore, when the absence of the learned counsel has reasonably been explained, the absence of the petitioner would not make any difference. Some case law, was cited from both the sides but, in view o the ruling of the Supreme Court in Muhammad Haleem and others v. H. H. Muhammad Naim and others (PLD 1969 SC 270) which covers the present case it is not necessary to notice or discuss the other cases. I am satisfied that sufficient cause has been shown for restoration of writ petition No. 897/70 which was dismissed for non-prosecution. In view of this finding there is no need for re-call of my order dated 20-3-1973.
Instead, I direct the restoration of the writ petition to its original number, subject to payment to Rs.500 as costs of the contesting respondents who, it is stated, engaged counsel in this case at different stages as also for this restoration stage. The petitioners are allowed two months time to make this payment.