C.M.No.1-2017 Brief facts of the case are that after the dismissal of appeal for non-prosecution, the applicant/appellant filed application for setting aside the order dated 30.10.2017 under Order XLI Rule 19 of Code of Civil Procedure on a sole ground mentioned hereunder: "2. That the Appellant engaged / substituted its Counsel, who filed power of attorney in office on behalf of the Appellant on 23.07.2015. Thereafter , the said appeal was fixed for hearing on 26.10.2017 and 30.10.2017 but no information / intimation was given to the Appellant' s counsel regarding fixation of the Appeal by any mode whatsoever . That upon perusal of Court's Cause List, the Counsel for the Appellant came to know that a Supplementary Cause List had been issued for 26.10.2017 on the same day at 12.11p.m. which was not communicated/delivered to the Counsel. Similarly , a Supplementary Cause List for 30.10.2017, was issued on the same day at 12.34p.m., which was also not communicated / delivered to the Counsel for the Appellant. The Counsel could not get the copies of Supplementary Cause Lists from the Court, which record can be read /examined while adjudicating upon the matter .
2. Learned Counsel for the applicant/appellant mainly argues that counsel for the applicant/appellant was prevented by sufficient cause from appearing in the court and proper place of procedure in any system of administration of justice is to help and not thwart the right to the people of their rights and all technicalities have to be avoided as law always does favour adjudication on merits rather than non-suiting the parties on technicalities and therefore, further opportunity should be granted to the applicant/appellant to contest this appeal on merit. In support of his arguments, the learned counsel for the appellant/applicant relied on judgments reported as "(i)
Imtiaz Ahmad Vs Ghulam Ali etc (PLD 1963 SC 382), (ii) Salamat Bibi and others Vs Settlement and Rehabilitation Commissioner Multan (PLD 1966 SC 467), (iii) Municipal committee Rawalpindi through the Secretary Municipal Committee Rawalpindi Vs Raja Muhammad Sarwar Khan (1968 SCMR 817), (iv) Muslim Commercial Bank Ltd Vs Tariq Saeed and another (2004 CLD 920), (v) Defence Housing Authority through Secretary and another Vs Mst. Parv een Akhtar (2017 MLD 899), (vi) Shaheen Ahmad Siddiqui Vs Muhammad Yaseen Khan and others (2007 YLR 2007 ), (vii) Bahadur Vs Jamat Ali and 6 others (1999 MLD 2429 ), (viii) Anwar Khan vs Fazal Manan (2010 SCMR 973), (ix) Muhammad Iqbal Vs Sardar Khan (2012 MLD 1487 ), (x) Messers National And Grindlays Bank Ltd Vs Arshad Ali Khalid Qureshi and another (PLD 1990 Karachi 436 ), (xi) L T. Col. Mirza Munawar Beg etc Vs Mst. Hassan Bibi and others ( 1981 SCMR 160 ).
While apart from other arguments, learned counsel for the respondents mainly argues that learned counsel for applicant/appellant failed to raise sufficient cause for his non-appearance in the court as well as non-appearance of appellant/applicant and even an affidavit of the learned counsel for the appellant/applicant is not appended with the application for restoration, therefore, applicant/ appellant is not entitled to any concession. Reliance is placed on reported judgments titled as Syed Junaid Akhtar and others Vs Managing Director/Chairman and others (PLD 2008 SC 130), (ii) Muhammad Siddique and 2 others Vs Khan Amir and another (2010 MLD 674), (iii)
Muhammad Rahim through L.Rs and others Vs Mst. Sakina Bibi and others (2010 YLR 3025 ), (iv) Syed Zulfiqar Ali Shah Vs Habib Bank Limited through attorney and 7 others (2006 CLD 139), (v) Naeem Ullah Khan Vs Abdul Muneem Karrak and 3 others (2001 YLR 590), (vi) Rex Talkies (Pvt) Ltd and anoth er Vs Samir osman and 2 others (PLD 2007 Karachi 362), and (vii) Iqbal Ahmad Khan Vs Muha mmad Afzal (2007 CLC 1948 ).
3. We have heard the arguments of learn ed counsel for the parties who have reiterated their respective arguments and perused the available record.
4. Perusal of record reveals that during the pendency of appeal, learned counsel for the applicant/appellant filed his power of attorney on 23.07.2015 vide diary No.8523 and sent written request for grant of adjournment on 12.06.2017 and the appeal was adjourned/fixed for 26.10.2017. On 26.10.2017, no one appeared on behalf of applicant/ appellant whereupon instead of dismissing the appeal, this Court adjou rned the appeal for 30.10.2017 with the caution of last opportunity but no one appeared on behalf of the applicant/appellant and finally appeal was dismissed for non-prosecution on 30.10.2017. The applicant/appellant filed application for setting aside the order dated 30.10.2017 with only one ground i.e. no information/intimation was given to the Appellant' s counsel regarding fixation of the Appeal by any mode whatsoever but failed to append affidavit of learned counsel for the appellant/applicant with the application. It was necessary for the learned counsel to file affidavit to explain his absence but only an official of appellant/ applicant felt contended by filing his affidavit in routine. Affidavit of the official of appellant/applicant is of no avail/beneficial to the applicant/appellant and he cannot depose about the alleged non-receipt of cause list by his counsel. Hence, without the affidavit of the learned counsel for the applicant/appellant, the appellant/ applica nt has not made out any sufficient cause for setting aside the impugned order . The superior courts have through a plethora of judgments, settled this legal proposition and relevant paras of the two of those reported judgments are reproduced hereunder:- "Syed Junaid Akhtar and others VS Managing director/Chairmain and others" ( PLD 2008 SC 130 ), ..........being counsel for the petitioner was equally responsible to explain his absence and file affidavit to explain his absence...............
"Mohammad Siddique and 2 others VS Khan amir and others ( 2010 MLD 674 ), ..........It has been noticed that the application was not supported by an affidavit of the learned counsel for the petitioner ..............."
5. With Regard to the argument of learned counsel for the applicant/appellant about adjudication of appeal on merit rather than on technicalities, suffice it to say that the exercise of discretion in this regard entirely depends upon the facts and circumstances of each case and this proposition cannot be applied as rule of thumb, the appellant/applicant has to satisfactorily explain about absence on the date of hearing and any negligence will not absolve from the legal obligation to pursue the appeal vigilantly . In exercise of discretion, the courts are required to keep rational/balance in their approach by not allowing a litigant to misuse indulgence or concession. Before dismissing the appeal/prior to impugned order , this Court granted adjournments to the applicant/appellant by fixing the appeal with specific dates of hearing but neither the applicant/appellan t nor learned counsel for the applicant/appellant cared to inspect the record or even failed to inquire from the court associate about the next date of hearing. In view of famous maxim, laws help those who are vigilant and not those who are indolent (vigilantibus, non dormientibus, jura subsveniunt) , the applicant/appellant committed gross negligence. Mere fact that a litigant has engaged a counsel to appear on his behalf does not absolve the litigant from all responsibilities. Litigant as well as his counsel was bound to see the appeal properly and diligently pursued and in case of any inaction on their part, opposite party cannot be made to suf fer rather valuable right accrues in favour of opposite party/respondents.
Even otherwise, service of providing cause list to the Advocates by the Bar is only complementary and has no legislative backing. Counsel in a case is supposed to check the list of the cases fixed for hearing, displayed in the office, outside the Court Room or in the Bar Room. The applicant/appellant has failed to explain as to why the fixation of case was not checked up by him, his counsel or by any of the persons from the office of his counsel.
Reliance is placed on judgment reported as "Zahid Afzal VS Mst. Fatima Saeed and 3 others ( 2005 MLD 1407 ).
6. Seeing from any angle, the applicant/appellant has miserably failed to make out a case warranting the restoration of appeal and after attending all the circumstances of the case as discussed above, we are not persuaded to exercise our discretion in favour of applicant/ appellant. Upshot of above discussion is that the present application for restoration of appeal is devoid of merits, hence stands dismissed.