' This is a Petition (Civil Miscellaneous Petition No, 2814.0 of 1984) for restoration of an appeal.
2. The appeal, which was dismissed for non-prosecution on 2nd June, 1984 was filed by the appellants, namely, Pakistan Day Memorial Committee and another against the respondent, Mian Abdul Khaliq and Company. The appeal was directed against the judgment and decree by which the appellants were required to pay a sum of Rs, 11,97,215 to the respondent. At the request of the petitioners (appellants), execution of the impugned decree was stayed. The appeal was admitted to a regular hearing on 6th May, 1981 but its hearing could not be concluded during the last three years, for one reason or the other, although it was fixed for hearing on several occasions. On 8th May, 1984, also, it was fixed for arguments when Mr. Hakam Qureshi, Advocate, learned counsel for the appellants, requested for adjournment stating that his sister-in-law had suffered an accident.
His request was not objected to by Sardar Sami. Hayat, Advocate, learned counsel for respondent.
With a view to ensuring their availability on the next date, I asked them to indicate the date and time on which it would be convenient for them to present arguments. They agreed to argue the appeal on 2nd June, 1)84 at 8-30 a. m. I, therefore, adjourned the appeal to 2nd June, 1984 and directed that it shall be taken up at 8-30 a. m. As I was keen to finalize the hearing of appeal I also directed that the office shall not fix any other work before me on that date except two cases in which actual dates had already been given. On 2nd June, 1984, when the appeal was called on at 8-30 a.m., learned counsel for the respondent was present but none appeared on behalf of the appellants. The appeal was, therefore, dismissed for want of prosecution. On the same day, the instant petition for re-admission of appeal was submitted by learned counsel for the petitioners.
3. In the petition, no explanation has been offered for absence of the two appellants on the date when the appeal was dismissed in default. As for the absence of their counsel, the following explanation was given :- "That Hakam Qureshi, Advocate, counsel for the appellants in the above-noted appeal had also to appear in another case entitled Ch. Ijaz Hussain v. Returning Officer, Sahiwal before the Election Authority headed by Mr. Justice Mahboob Ahmad on the ground floor. Hakam Qureshi, Advocate deputed his assistant Khanzada Saif Ullah Khan, Advocate to watch the case in the Court of Mr. Justice Ch. Muhammad Ilyas and to inform Hakam Qureshi, Advocate as soon as the above-noted appeal is called for hearing. Hakam Qureshi, Advocate was himself enquiring as to when the case before the Election Authority was likely to be called so that .He may be able to appear in both the cases. At about 8-30 a. m. Today while Hakam Qureshi, Advocate was present outside the Court of the learned Election Authority while Khanzada Saif Ullah Khan, Advocate was on his way to the Court of Mr. Justice Ch. Muhammad Ilyas the above-noted appeal was called for hearing and was dismissed in default. Khanzada Saif Ullah Khan reached the Court of Mr. Justice Ch. Muhammad Ilyas hardly two minutes and was informed that the appeal had been dismissed just now while Hakam Qureshi, Advocate was coming to the Court of Mr. Justice Muhammad Ilyas he was informed about the dismissal of the appeal by the said Assistant who usually assists him in his cases of High Court."
' Mr. Hakam Qureshi, Advocate and Khanzada Saif Ullah Khan, Advocate filed affidavits in support of the above explanation.
4. The petition was resisted by the respondent. It was contended by the respondent that since there was no explanation for the absence of appellants, the petition was not maintainable and deserved to be dismissed on that ground alone. In regard to the explanation of their counsel, the reply of the respondent was as follows :- "That the para. In so far as it relates to the appearance of Mr. Hakam Qureshi, Advocate in another cases entitled Ch. Ijaz Hussain v. Returning Officer, Sahiwal, before the Election Authority is not denied. The rest is incorrect and hence denied. Mr. Hakam Qureshi is counsel for respondent No, 3 in the said case which was taken up for hearing at about 12 o'clock on 2nd June, 1984 and adjourned to 14th July, 1984 because the counsel for the petitioner was not available and Mr. Hakam Qureshi had no objection to the adjournment. It may also be pertinent to state here that the Election Authority commences its work after the break i. e: 11.00 a. m. And the petitioner's learned counsel, therefore, had not justification to go there in preference to the conduct of appeal in this Court which was fixed for 2nd June, 1984 at 8-30 a. m. By a Special order of Mr. Justice Muhammad Ilyas on the previous date of hearing passed in the presence of both the parties. The appeal was called out several times and none appeared for the appellant. The appeal was, therefore, dismissed after sufficient awaiting for the appellant and its counsel. The allegation of Mr. Saif Ullah Khan reaching the Court 'hardly two minutes' is false and in any case is vague to give any benefit to the appellant."
' Mian Abdul Khaliq filed an affidavit in terms of the above reply.
5. Learned counsel for the petitioners took exception to the order of the dismissal of the appeal in default by contending that since it had been admitted to a regular hearing, it should have been decided on merits after hearing the respondent's counsel even though the appellants and their counsel were not present on 2nd June, 1984. As for the absence of the appellants on the said date, his plea was that since the appeal had been filed by the Government, none of the appellants had appeared on the day when the appeal was dismissed in default. He maintained that there was sufficient cause for his own absence from the Court. It was also submitted by him that the appeal should be restored because the petition for its restoration was made on the same day when it was dismissed for non-prosecution. He cited Federation of Pakistan etc. v. Muhammad Hanif (1), Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another (2) ; Seth Shivarttan G. Mohatta and another v. Messrs Muhammadi Steamship Co. Ltd. (3), Mst. Baigan v.
Abdul Hakim and another (4), Muhammad Haleem and others v. H. H. Muhammad Naim and others (5), Muhammad Shafi and 2 others v. Haii Ibrahim and 8 others (6) and Sorabji Rustomji Parsi v. Ramjlal Devjibhai Pardeshi (7) to support his arguments.
6. On the other hand it was submitted by learned counsel for the respondent that in the absence of the appellants, the appeal could not be decided on merits. According to hint, the failure of the appellants to offer any explanation for their non-appearance was fatal to the petition in hand inasmuch as for securing re-admission of the appeal it was necessary not only for their counsel but also for the appellants to show sufficient cause for their absence. In regard to the explanation of their learned counsel, the plea of learned counsel for the respondent was that on his own showing learned counsel for the appellants was not busy before the Election Authority and was simply present outside the Court room of the Chairman of the said Authority, namely, Mr. Justice M.
Mahboob Ahmed, to inquire about the time when the case of Ch. Ijaz Hussain was likely to be taken up by the learned Authority. The argument proceeds that since specific time had been fixed by this Court for the hearing of appeal, learned counsel for the petitioners' (appellants) ought to have come to this Court at 8.30 a. m., if not a bit earlier, instead of engaging himself in making inquiries in relation to another case which was actually taken up after 11-00 a. m. He added that if at all the said inquiries were necessary, the same could be made by Khanzada Saif Ullah Khan, Advocate, who, according to learned counsel for the petitioners, usually assists him in High Court cases and was available with him on 2nd June, 1984 also. It was pleaded by learned counsel for the respondent that the appeal could not be re-admitted on the short ground that the
(1) 1981 CLC 130 (2) PLD 1975 SC 678
(3) PLD 1965 SC 669 (4) 1982 SCM R 673
(5) PLD 1969 SC 270 (6) 1983 CLC 2197
(7) AIR 1924 Born. 392 ' petition for its restoration was made on the same day when it was dismissed in default. It was stressed by learned counsel for the respondent that since there was no explanation for the absence of the appellants, and their learned counsel was negligent in attending to the appeal, it was not a fit case for re-admission of the appeal. In this connection, reliance was placed by him on Zulfiqar All v. La! Din and another (1), Haji Ahmed Hasan v. Dr. Mian Aziz Ahmed and 5 athers (2), Abdul Shahid and another v. Sh. Azim Bakhsh (3), Zakaullah v.. Mst. Sultan Jehan Begum (4), Puniab Province v. Malik Muhammad Azam (5) and Akhtar Hussain v. Settlement Commissioner, Lahore Division, Lahore and others (6).
7. Before adverting to the other points involved to this case, I would like to deal with the contention of learned counsel for the appellants that on 2nd June, 1984, the appeal should have been disposed of on merits instead of dismissing it in default even if none had appeared on behalf of the appellants. The only authority cited by him for the above proposition is the case of Federation of Pakistan, etc. Decided by Aftab Farrukh, J. (as he then was). One of the observations made in that case was that when an appeal is admitted to hearing, it should be disposed of on merits and not on the "short ground of default". As against this, there is chain of authorities to the effect that in the absence of an appellant, his appeal cannot be decided on merits, and it is discretionary with the Court seized of his appeal to dismiss the appeal in default or adjourn it to another date for hearing.
Some of the authorities in point are Messrs S. M. Abdullah & Sons v. Messrs Pakistan Mercantile Corporation Ltd. And another (7), Kundha Singh, Deceased represented by Gurnam Singh and others v. The Punjab State and others (8), Musaliarakath Muhammad v. Manaviakrama the Zamorin Rajah Avergal and others (9), Taher Sheikh Chowkidar and others v. Otaruddi Howladar and others (10), Basudev v. Bideshi and another (11) and Nasir Khan v. Itwari and others (12). I have already followed the view taken in the case of Messrs S. M. Abdullah & Sons while deciding the case Sh. Abdul Rehman v. Mst. Musarrat Begum and another (13). Since the consensus of opinion is against the deciding of appeal on merits in the absence of the appellant, I, with respect, express my inability to share the view taken in the case of Federation of Pakistan etc. I, therefore, bold that since on 2nd June, 1984, none had appeared to' prosecute the appeal, filed by the petitioners, I could not decide it on merits. I had the discretion to dismiss it in default or adjourn it to some other date but since the appellants or any one associated with, or sub-4 ordinate to them, or the appellants' counsel or his assistant or clerk did not appear at the appointed time i. e.
8.30 a. m. Not anyone of them had turned up earlier to make request for taking up the case after 8- 30 a. m. Or adjourn it to another date I was not inclined to show any
(1) 1974 SCMR 162 (2) 1979 CLC 629
(3) PLD 1981 SC 200 (4) 1980 SCM R 896
(5) 1982 CLC 1475 (6) PLD 1966 (W. P.) Lab. 567
(7) PLD 1976 Kar. 268 (8) AIR 1962 Pb. 82
(9) AIR 1923 Mad. 13 (10) AIR 1929 Cal. 475
(11) AIR 1929 Rang. 11 (2) (12) AIR 1924 All. 144
(13) 1980 CLC 781 ' indulgence to the appellants and dismissed the appeal in default instead of adjourning it to another date.
8. Now, I proceed to determine the question whether there is sufficient cause for re-admission of the appeal. Admittedly, there is no explanation on the record for the absence of the appellants. It is incorrect to say that the appeal was filed by the Government. As stated at the outset, the appeal was preferred by the Pakistan Day Memorial Committee, through its Chairman, and another. The Commissioner, Lahore Division, Lahore, is Chairman of the said Committee, which was the first appellant in the appeal. The second appellant was the Superintending Engineer, Provincial Circle, Lahore. He is Secretary of the said Committee. The Commissioner as well as Superintending Engineer are stationed at Lahore. They have also a large number of subordinates available to them in Lahore. It was, therefore, not difficult for them to personally appear before this Court or depute some official to look after the appeal. They, however, failed to do so and, upto this moment, no reason whatsoever is forthcoming for their short coming. In the case of Punjab Province, relied upon by learned counsel for the respondent, an appeal filed by the Provincial Government was dismissed in default and my learned brother Khalil-ur-Rehman Khan, J. Declined to restore it. While dealing with this aspect of the matter that the appeal before him was filed by the Government, it was rightly observed by my learned brother that it "is well-settled that in adjudication of civil matters, Government is not entitled to any preferential treatment as against the ordinary citizens and any negligence in prosecution of the appeal cannot be brushed aside". I am, therefore, unable to ignore the failure of the petitioners to given any reason for their absence.
9. The explanation furnished by learned counsel for the petitioners for his absence is also far from satisfactory. I have already observed that on 8th May, 1984 there was an agreement between learned counsel for the parties that the appeal may be heard on 2nd June, 1984 at 8-30 a. m. And I had ordered accordingly. In view of the commitment made by him, by means of the above agreement, learned counsel for the petitioners should have been present in my court-room on 2nd June, 1984, at 8-30 a. m. If not a little earlier. He, however, did not appear even at 8-30 a. m.
Although the appeal was called on several times. The appeal was, therefore, dismissed in default, after waiting for him for a short while. According to him, at about 8-30 a. m. he was present outside the courtroom of Mr. Justice M. Mahboob Ahmed who is also Chairman of the Election Authority. It was stated by learned counsel for the petitioners that he had gone to the said court-room for making enquiries as to when the case of Ch. Ijaz Hussain would be taken up by the Election Authority. In the reply submitted by the respondent it was stated that the Election Authority hears cases after 11-00 a. m. It was also added that the said case was taken up by the Election Authority at 12 O'clock and then adjourned to 14th July, 1984. It was not denied by learned counsel for the petitioners that the above case was taken up by the Election Authority after 11-00 a. m. In view of the time specified by me for the hearing of the appeal, learned counsel for the petitioners should not have engaged himself in making enquiries about the timing of the hearing of the said case by the Election Authority, and if it was necessary to do so the said enquiries could be made by his assistant, Khanzada Saif Ullah Khan, Advocate, who was, admittedly, present with him at the relevant time. His clerk could also do that job. And if the enquiries were essentially to be made by learned counsel for the petitioners himself he too could easily do so by 8-25 a. m. Because the High Court starts functioning at 8-00 a. m. My court-room is on the first floor. It is almost just above the court-room of Mr. Justice M. Mahmoob Ahmed which is on the ground floor. Learned counsel for the petitioners could conveniently cover the short distance between the two court-rooms within five minutes. It has not been stated why the said enquiries could not be concluded within 25 minutes for which the Court of Mr. Justice M. Mahboob Ahmed had remained open before the petitioners' appeal was called on by me. It is also noteworthy that learned counsel for the petitioners engaged himself in the said enquiries without the prior permission of, or any intimation to, this Court. None had appeared before me at the appointed time to state that leamed counsel for the petitioners was making the enquiries in question. No cogent reason has been given why Khanzada Saif Ullah Khan, Advocate, had come late to my Court. He was not doing anything before 8-30 a. m. Although, according to the view expressed in the case of Nuzha Bint El-Ha] Stiliman Abu Khadra v. Haji Ibrahim Saleh El-Helou and others (I), the clerk of learned counsel for the petitioners had no official standing yet even he did not turn up before me when the appeal was called on ; and no explanation for his lapse is forthcoming. I, therefore, cannot help reaching the conclusion that not only learned counsel for the petitioners but also his assistant and clerk did not take due care of the appeal in question.
10. As for the cases of Mst. Baigan, Muhammad Shat and 2 others and Muhammad Haleem and others, relied upon by learned counsel for the petitioners, they are distinguishable on facts. In all those cases the default of the counsel was due to his being busy before another Court but this is not true of the case before me inasmuch as learned counsel for the petitioners was not addressing arguments in the case before the Election Authority nor it was being argued by his adversary. In fact, that case had not yet been called on when the petitioners' appeal was taken up by me at the appointed time. At that time, learned counsel for the petitioners was allegedly making enquiries with regard to the probable time of the hearing of the case by the learned Authority. There is no dispute on the point that the said case was eventually taken up by the learned Authority after 11-00 a. m. i. e., after more than two hours of the time fixed for hearing of the appeal. It is not the plea of learned counsel for the petitioners that at 8-30 a. m. He was in conversation with the Chairman or any Member of the learned Authority or was having talk with the Reader or any other official assisting it. Instead, the words "while Hakam Qureshi, Advocate, was present outside the Court of the learned Election Authority" appearing in his explanation gives an indication to the effect that he was making inquiries while standing outside .The court-room of Mr. Justice M. Mahboob Ahmed. In this state of affairs, it cannot be said that learned counsel for the petitioners was busy before E another Court when their appeal was called on by me and dismissed for want of prosecution.
11. There are other factors also which distinguish the instant case from the cited ones. In Mst.
Baigan's case although the counsel was not present when his case was dismissed in default yet he remained constantly
(1) PLD 1948 P C 94 ' vigilent and took steps which spoke of his earnest desire to prosecute the case. This is evident from his submission finding mention in the following passage from the judgment of the Supreme Court : "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 7th July, 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. And when he was free from the engagement (in an appeal) he 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."
No such steps were taken by learned counsel for the petitioners in the present case. It may also be pointed out in Mst. Baigan's case the) counsel could not enter appearance due to "an honest mistake in calculating and making estimate regarding timings for appearance before different Benches of the High Court" but in the instant case no calculation wasr involved as the time for hearing of the appeal had been specified by me on the previous date. In the case of Muhammad Shaft and 2 others, the absence of the counsel and that of the appellant was "sufficiently explained" which has not been done in the instant case. Also, in the case of H Muhammad Shaft and 2 others, the opposite counsel had agreed to the restoration of the appeal. In the case of Muhammad Haleem and others, the counsel was busy before the Supreme Court and he had sent a chit to the Sarishtadar of the Court, which dismissed the matter for non-prosecution, "requesting that the matter may not be taken up for hearing as he was still busy before the Supreme Court. This chit was duly delivered to the Sarishtadar but the Court dismissed the matter for non-prosecution." No such chit was sent by learned counsel for the petitioners to my Reader although there is an office order of this Court in this regard. It is office order, dated the 20th November, 1965, which has been reproduced at page 87 of the High Court Practice and Procedure by Mr. Faiz Muhammad Sadiq. It reads as follows : "No adjournment is to be granted on account of engagement in another Court unless counsel is occupied with a case being actually heard in that Court. In the latter case counsel has to send engagement slip under his signature to the second Court giving the particulars of the case with which he is busy and the time he will take before concluding it."
12. In view of the above discussion, the cases of Mst. Baigan, Muhammad Shaft and 2 others and Muhammad Haleem and others, cannot be made use of by learned counsel for the petitioners.
13. ' The case of Manager, Jammu and Kashmir State Property in Pakistan and Seth Shivrattan G.
Mohatta and another were relied upon by learned counsel for the petitioners to plead that the petitioners' appeal could be restored even though he (petitioners' counsel) was negligent in.
Prosecuting the appeal. It is true that before the case of Zulfiqar cited by learned counsel for the respondent, was decided, it was ruled in some cases, including the case of Seth Shivrattan G.
Mohatta and another, that a party should not suffer on account of the carelessness of his counsel but a contrary view was taken by the Supreme Court in the case of Zulfiqar Ali, and that view is still holding the field. .
14. In the case of Seth Shivrattan G. Mohatta and another, apart from the negligence of the counsel there were the following other factors justifying restoration of the suit : ..... The 1st May, 1957 on which date the suit was dismissed in default, had been declared an Eid holiday but the Court remained open because the moon was not sighted on the previous evening.
This by itself, constituted a sufficient cause for excusing default in appearance by the plaintiff on that day and, in any case, a counsel had put in appearance on their behalf though only to ask for adjournment for filing a power-of-attorney in his name, a request which in view of the fact that Mr. S. A. Rafique, learned counsel of the plaintiff, had in the meantime gone abroad for treatment of his failing eyesight merited to be accepted by the learned Single Judge."
' No such factors are available in the case of in hand. The petitioners cannot, therefore, equate their case with that of Seth Shivrattan G. Mohatta and another.
15. It was in view of the "very special circumstances" of the case of Manager,(Jammu and Kashmir State Property in Pakistan, that the Supreme Court had made departure from the rule laid down by it in the case of ZulfiqarAli. As observed in the case of Haji Ahmed Hassan, relied upon by learned counsel for the respondent, the clarification of the rule by the Supreme Court in the case of Manager, Jammu and Kashmir State Property in Pakistan does not have the effect of reversal of the underlining principle of the above rule". Relevant passage from the judgment in Haji Ahmed Hassan's case reads as under : "It is true, that the trend of recent authority (in line with the ratio in the case of Zulfiqar Ali) is that if a party engages a counsel 'who was lacking in his sense of responsibility to the Court, it is he who should suffer and not the other side'. The clarification of the rule by the Supreme Court in the case of Manager, Jammu and Kashmir State Property in Pakistan does not have the effect of reversal of the underlining principle of the above rule. Its rigour, however, has been reduced by a note of caution that adherence thereto should not be rigid and blind so as to ignore very special circumstances in individual cases where departure might be necessary in the interest of justice.
These observations were prefixed with the view that the peculiar circumstances of the case before their Lordships, 'would justify the invocation of this Court's constitutional power to do complete justice notwithstanding the technical objections...........
' In Haji Ahmed Hassan's case, this Court had followed the general rule enunciated in case of Zulfiqar Ali, because there were no special circumstances in the former.
16. There are no special circumstances in the instant case either. It will will also be demonstrated, in due course, that factual position of the case of Manager, Jammu and Kashmir Slate Property in Pakistan, was materially different from that of the present case. In the case of Manager, Jammu and Kashmir State Property in Pakistan, a suit had been filed by one Khuda Yar, against the Government of Pakistan and the Manager, Jammu and Kashmir State Property in Pakistan, seeking declaration of title to certain property on the basis of adverse possession. The suit was decreed by a Civil Judge of Lahore. His judgment and decree were challenged by the defendants by filing an appeal in the Court of District Judge, Lahore, on 3rd May, 1969. The appeal was received, on transfer, in the Court of Mr. Shamsuddin, Additional District Judge, Lahore, an officer who was later screened out for in different record on the recommendation of the High Court, on 10th December, 1970. On the same day notices were issued to the parties for 11th January, 1971 and the record was also summoned. On 11th January, 1971 without caring to ascertain as to whether parties had been served, the learned Additional District Judge dismissed the appeal in default at 2.01 p. m. An application for restoration of appeal was moved on behalf of the Manager, Jammu and Kashmir State Property in Pakistan by Syed Manzoor Hussain, Advocate, on 11th February, 1971 on the ground that the dismissal of appeal was based on a bona fide mistake as to the date of hearing which the Reader of the Court had erroneously noted as 11th January, 1971 instead of 11th February, 1971 and that even the respondent was not present on that date. The application was posted for hearing five months later on 14th July, 1971, which was unusual and against the High Court instructions under which no case is to be adjourned for more than three months. No one appeared on behalf of the appellant to pursue the application on the aforesaid date with the result that it was dismissed in default precisely at 2.01 p.m. Three days later on 17th July, 1971, yet another application for restoration was moved which too was dismissed in default on 2nd November, 1971 at 4-00 p.m. By Mr. Faiz Ahmed Aslam, who had succeeded Mr. Shamsuddin. The Manager Jammu and Kashmir State Property in Pakistan filed a Regular Second Appeal against the above orders relating to the dismissal of the appeal and the applications for restoration thereof. Subsequent) y, however, realising that the appeal was not competent, a petition was moved praying that the appeal may be treated as a revision. It was alleged in the petition that the petitioner's right of second appeal was extinguished due to gross professional misconduct of the counsel (Syed Manzoor Hussain) against whom he was proceeding separately. It was also asserted that the respondent not being in possession should have filed a suit under section 39 of the Specific Relief Act on payment of ad valorem court-fee and that the trial Court had erred in law in granting the decree in his favour.
Allegations of collusion were also brought against the trial Court. Accordingly, what was initially filed as appeal was registered as a civil revision. It came up before a learned Single Judge of this Court and was dismissed in limine. The view taken by the learned Judge was that the case was fixed for hearing on 11th January, 1971 and was dismissed in default owing to absence of the appellant and as such it was not a "case of exercise or one of material irregularity in the exercise of jurisdiction". The learned Judge also observed that "if on the date for which the case was fixed for hearing the petitioner or his counsel was absent, the Court could not do anything else but to dismiss the appeal in default." His order was, assailed by the Manager, Jammu and Kashmir State Property in Pakistan by means of an appeal, by leave, filed before the Supreme Court.
17. The appeal was accepted by the Supreme Court for three reasons referred to as Firstly, Secondly and Lastly in the following observations : - "Firstly, that it was the duty of the Additional District Judge to ascertain that the respondent had been duly served and this he did not discharge and, therefore, the case could not be called for hearing on that date. Secondly, that he had acted rather mechanically without being aware of his discretionary power not to dismiss the appeal, and, therefore, the order of dismissal having been made in ignorance of jurisdiction was void and a nullity.
' In Musallarakath Muhammad v. Nanaviakrama The Zamorin Raja Avergal and others (AIR 1923 Mad. 13), the learned Judges traced the history of Order XLI, rule 17 which corresponded to section 556 of old Code, the only difference between the two provisions, however, being that the expression 'shall be dismissed' as existing in the earlier provision was substituted by the expression 'the Court may make an order that the appeal be dismissed', the obligation to dismiss yielding place to a discretion. While interpretting the change in law, the learned Judge held that under the old Code, the Court had no power to adjourn the case and give a further chance to the absenting appellant which power was available to it under the new provision. In this case the learned Judge proceeded to deal with the case on merits in the absence of the appellant and the judgment was treated as one without jurisdiction. We might also refer in this context to the argument of Haji Ghias Muhammad based on the Chitley's Commentary under Order XLI, rule 17, that in the event of absence of the appellant dismissal of appeal on merits would be illegal. This does not help the respondent. The view taken by most of the High Courts is that the fact that the Court is bound to dismiss the appeal for default does not enable it to dismiss the appeal on merits but only to adjourn to another date.
' Lastly, we would like to observe that even otherwise, the peculiar circumstances of the case would fully justify the invocation of this Court's Constitutional power to do complete justice notwithstanding the technical objections urged on behalf of the respondent each one of which has been separately dealt with and found to be untenable. The dispute relates to a very valuable piece of property situated close to Lahore Railway Station and justice of the case demands that the appeal should be heard and decided on merits, particularly in view of the conduct of the council should not only allow the appeal to be dismissed in default in the first instance, but also allow the subsequent applications for.Restoration to meet the same fate. The observation made in this Court's judgment in Zulfiqar All v. Lal Din that of a person 'engages a counsel who was lacking in his sense of responsibility to the Court it is he who should suffer and not the other side'. Does not lay down an inflexible rule to be rigidly and blindly followed regardless of the circumstances of the case. In the very special circumstances of the case before us a departure is amply justified in the interest of justice". *(underlining is by me).
[Here in italics]
18. According to the Supreme Court, therefore, the order of dismissal of the appeal, passed by the Additional District Judge, was liable to be set aside only on the ground of negligent conduct of the appellant's counsel but also for the reasons that his order was without jurisdiction, void ab initio and a nullity inasmuch as it was made by him on a date which was not fixed for the bearing of the appeal and that he had "acted rather mechanically without being aware of his discretionary power not to dismiss the appeal". Although the Supreme Court did not say so, in so many words, yet it is evident from its judgment that it had also not approved of the view expressed by the learned Single Judge of this Court that "if on the date for which the case was fixed for hearing the petitioners or his counsel was absent the Court could not do anything else but to dismiss the appeal in default". In this connection, reference can appropriately be made to the following observations of the Supreme Court :- "Rule 16 envisages the presence of the parties and if having heard the appellant in support of his appeal the Court finds that no case is made out it may even dismiss the appeal without calling upon the respondent to reply. Rule 16, therefore, clearly proceeds on the presumption of the presence of the parties. If, however, the appellant does not appear at this stage the Court may make an order of dismissal in default. Here too a discretionary power has been conferred on the Court and it is under no obligation to dismiss the appeal. On the other hand the view taken by the High Court in the impugned order proceeds on the assumption as if no discretion or option vested in the Additional District Judge not to 'dismiss the appeal which he was under an obligation to dismiss."
' It is not the plea of petitioners in the instant case that they were not served for the date on which their appeal was dismissed or that the said date was not the date of its hearing. This plea could not possibly be raised by them because it was in the presence of their counsel that on 8th May, 1984 I had adjourned the appeal to 2nd June, 1984 for hearing when it was dismissed for want of prosecution. I was also not in any doubt that on 2nd June, 1984 when no one had appeared to prosecute the appeal, I had the discretion to dismiss the appeal in default or adjourn it to some other date. I was not of the view, nor did I say so in the order of dismissal passed by me, that I was bound to pass the order of dismissal for non-prosecution. Further, the case under report related to very valuable piece of immovable property in the city of Lahore (54 Kanals, 15 Marlas and 86 sq. Ft.
Of land in the revenue estate of Naulakha and situate between Landa Bazar and Sarai Sultan quite close to the Railway Station) but the instant case is in respect of a money matter.
19.
19. The dispute involved in the present case is in regard to the construction of Minar-e-Pakistan.
This historic monument was constructed by the respondent, which is a firm of Civil Engineers and Contractors, in pursuance of a contract entered into between the respondent and the first petitioner, namely, Pakistan Day Memorial Committee. The respondent's bill has, however, not been cleared as yet although, according to learned counsel for the respondent, the monument was built more than 15 years ago. Dispute relating to the amount payable to respondent arose between the parties and on an application filed by the respondent in 1976, the dispute was referred to arbitration. The arbitrator, a Government Officer, gave award, in 1978, holding that the respondent was entitled to a sum of Rs, 11,97,215 but not a penny out of the said amount has so far been paid to the respondent. The award was challenged by the petitioners but, after usual proceedings, it was made rule of the Court, in 1980. Order of the trial Court in this regard was assailed by the petitioners by filing appeal (sought to be restored) to this Court and obtained a stay order against the execution of the decree passed in terms of the award. Thus, the respondent has been deprived of the fruits of the decree for about 4 years. If the respondent had invested the said amount in its business it was likely to earn a lot during the period for which its payment has been withheld. What the ever-increasing inflation his left in the said sum is not difficult to imagine. Any undue latitude to thelg petitioners would, therefore, to my mind, add to the agony of the respondent.
20. In view of above discussion on the case of Manager, Jammu and Kashmir State Property in Pakistan with reference to the case in hand, II am of the opinion that circumstances of the present case do not justify relaxation of the general rule laid down in the case ofZulfiqar Ali.
21. Dictim in Zulfiqar Ali's case was followed in the case of Abdul Shahid and another also, which too was relied upon by learned counsel for the respondent. In the case of Abdul Shahid and another, the appellants had obtained a stay order from this Court to protect their possession but failed to appear on the date fixed for hearing of the appeal. As a result, the appeal was dismissed for non- prosecution. They made a petition for restoration of appeal but as sufficient cause for their absence and that of their counsel had not been shown, the application was dismissed. The order of this Court was challenged by them before the Supreme Court but without success. It was observed by the Supreme Court "that it was incumbent on the appellants and their learned counsel to be vigilant about the next date in the appeal, and as they were obviously not vigilant, the learned Judge rightly dismissed their restoration application, and his order is fully supported by the view taken by this Court in Zulfiqar Ali's case".
22. As stated earlier, learned counsel for the respondent also placed reliance on the case of Zakaullah which was decided by the Supreme Court after the disposal of the case of Manager Jammu and Kashmir State Property In Pakistan. In Zakaullah's case, it was contended that the counsel had sent an intimation that he was busy before some other Bench and also that he was informed that hearing had been adjourned, This plea was, however, discredited by the High Court of Sind for the following reasons :- "......The ground for setting aside the ex parte order of dismissal is that the learned counsel for the appellant was busy before another Bench of this Court. However, no such intimation was given to this Court and the affidavit does not even state the Bench before which the learned counsel was busy and if so in which matter. It is next alleged that the counsel had been informed by the son of the appellant that bearing of the appeal had been adjourned to a date in office which is hardly believable for the appeal in fact had been dismissed. In the circumstances not only this application is barred by time but even otherwise without any merit and it is, therefore, dismissed."
' This reasonings of the High Court was approved of by the Supreme Court and the Civil Petition for Special Leave to Appeal was dismissed in limine.
23. Perhaps it will not be out of place to mention here that if every matter dismissed in default is restored merely on the raising of the plea of lack of interest on the part of his counsel, it would result in disorder.
' This was highlighted by Kaikaus J. In Dnunua unjab Province (I) in the following words :- "If I find that Mr. Nazir Ahmad Bajwa had not made any arrangements, can this appeal still be restored '? It is argued on behalf of the appellant that a party should not be penalized on account of the negligence of his counsel. However, much we may want not to penalize the party on account of the fault of his counsel. I am afraid we are forced to do it, for to hold otherwise would lead to chaos. In all cases, where a proceeding is to be restored or an ex parte decree order is to be set aside, the simple plea to take would be that counsel was negligent. Generally, the plea would be correct on facts, and the opposite party would be without any reply to an application for restoration of the setting aside of the ex parte decree."
24. As indicated above, relying on an old case of Sorabji Rustomji Parsi, decided by the High Court of Bombay, it was urged by learned counsel for the petitioners that if an application for restoration of a case is made on the same day when it is dismissed in default the case should be restored.
Relevant observations made in the case of Sorabji Rustamji Parsi read as follows 6......Even supposing a party is absent when the suit is called on for hearing, if he appears, in Court before the Court has risen for the day then the Court should listen to his application for having his suit restored. If the opponent has left the Court then the opponent should have notice, but if the opponent is present in Court, then it is the duty of the Judge to dispose of the application at once.
The mere fact that a party or his pleader has arrived in Court after the proper hour when the suit has been disposed of ex parte, is no reason whatever why the suit should not be restored to the board and the case heard on its merits."
25. The facts of Sorabji Rustamji Parsi's case are different from those of the case before me inasmuch as in the cited case the party against whom an ex parte decree had been passed had appeared before the Court before the other party had left the Court but in the present case neithe the petitioners nor their counsel had turned up during the presence of N learned counsel for the respondent. Even otherwise, it is not possible for me to accept, as a general rule, the proposition that if an application for restoration of a case is made on the same day when it is dismissed for want of prosecution that, by itself, constitutes a valid ground for the restoration of the case. Such a rule would offend against the provisions of Order XLI, rule 19 of the Code of Civil Procedure which oblige the appellant, whose appeal is dismissed for non-prosecution, to show sufficient cause for his default before his appeal can be re-admitted. The said rule would also not be conducive of the speedy disposal of judicial
(1) PLD 1960 (W. P.) Lah. 786 ' cases because it would provide an opportunity to the parties who play hide and seek with the Court to delay the disposal of cases. In the case of Akhtar Hussain, relied upon by learned counsel for the respondent, also, application for restoration of a writ petition was submitted on the same day when it was dismissed in default but despite that it was not restored by a learned Single Judge and his decision was upheld by ,a Division Bench although it was noted by the Division Bench that "usually when an Advocate asks for restoration of a matter dismissed in default in the same day, the Court does accept the request in the absence of any special reason". The reason for which the Division Bench did not agree to restore the writ petition was that there was explanation for the default of the party and one of his learned counsel, but there was no explanation for the absence of the other counsel. In the present case, there is no explanation for non-appearance of the petitioners. Also, the absence of Khanzada Saif Ullah Khan, Advocate, who usually assists learned P counsel for the petitioners in the High Court cases and had appeared in the appeal for the petitioner on a number of occasions, has not been. Adequately explained. The present case, therefore, appears to be poorer than that of Akhtar Hussain. I, accordingly, hold that although the making of application for restoration of a case on the same day when it is dismissed for non- prosecution is a circumstance favourable to the party at fault yet this circumstance does not, by itself, p.m y the restoration of the case.
26. The upshot of the whole discussion is that learned counsel for the petitioners has not shown sufficient cause for his absence on the date and at the time of hearing of the appeal, which were fixed at his request and that of learned counsel for the respondent. Even if he had any sufficient cause for his non-appearance, there is none for the appellants. The appeal cannot be re-admitted unless absence of the petitioners and their learned counsel is adequately explained. Since that has not been done, it is not possible for me to re-admit the appeal. Petition for restoration of the appeal is, therefore, dismissed.