' This petition (Civil Miscellaneous No, 1183/C of 1984) had been made by Sabir Ali and others for restoration of their Civil Revision No, 1098 of 1979 which was dismissed in default on 10th March, 1984. On the said date, the civil revision was first called on at 9-40 a.m. When learned counsel for the respondent was present but none had turned up to prosecute the revision. It was again called on at 11-15 a.m. When position was the same. It was, therefore, dismissed for want of prosecution.
' Mr. Iftikhar Ali Sheikh, Advocate, was the petitioners' counsel in the civil revision. In the petition for restoration of the civil revision, which was presented by him on the same day when the civil revision was dismissed in default, it was stated by him that he was busy before a Division Bench consisting of Mr. Justice Saad Saood Jan and Mr. Justice Abaid Ullah Khan and, therefore, could not enter appearance before this Court. He explained that his non-appearance was not intentional. It was pointed out by him that his Clerk had informed the Reader of this Court that he was on his legs before the Division Bench. He submitted affidavit, dated 10th March, 1984, sworn to by his Clerk, Mushtaq Ahmad, to support the petition.
3. The respondent, Shahbaz Khan, opposed the petition by filing a reply. It was urged by him that this Court has no jurisdiction to restore a civil revision dismissed for non-prosecution. It was also submitted by him that there was no explanation for the absence of the petitioners who are four in number. According to the respondent, the petitioner's default was deliberate. In this connection he said: - "The Sabir Ali petitioner was seen by the respondent and his attorney Mushtaq Ahmad sitting in the bar room on 8-3-1984 with Ch. Mushtaq Ahmad Advocate, Ferozewala, when both the parties had come to enquire about the number of cases on the list. On 10-3-1984 Sabir Ali's brother-in-law was seen in the High Court premises by the respondent and Mushtaq Ahmad.
However, he evaded coming to the Court Room."
' In addition, it was maintained by the respondent that the past' conduct of the petitioners was of deliberate absence inasmuch as the revision petition was earlier dismissed on 19th January, 1980 for non-deposit of charges for substituted service and for non-prosecution, but the same was restored on 26th January, 1980. The respondent filed his own affidavit and that of his attorney, Mushtaq Ahmad referred to above, both dated the 13th March, 1984, to support his plea.
4. Thereafter, the petitioners submitted affidavit of Sabir Ali, dated the 20th March, 1984, and that of Mushtaq Ahmad, Advocate, dated the 21st March, 1984, to controvert the respondent's allegation that they (Sabir All and Mushtaq Ahmad, Advocate) came to the Bar room on 8th March, 1984 and that on 10th March, 1984 Sabir Ali's brother-in-law was seen on the premises of this Court. In his affidavit, it .Was also stated by Sabir Ali, who is petitioner No, 1 herein, that he looks after the litigation. It was added by him that petitioner No,2, who is his wife, is a Pardahnasheen lady while the other petitioners, namely, petitioners Nos. 3 and 4 are his nephews. He further stated that he lived in a far off village and that he had no information of the fixation of the case for 10th March, 1984. These averments were traversed by Mushtaq Ahmad, the attorney of the respondent, by filing another affidavit dated the 21st March, 1984. Mushtaq Ahmad also made the following statement with a view to showing that the petitioners counsel was not busy before the Division Bench when the civil revision was called on by this Court:- "That thereafter while the deponent, the respondent and his senior counsel were returning to Bar room the petitioner's learned counsel was seen by us in the porch of the Bar room coming from other side without gown and going from there towards the Court Room of Mr. Justice A.S. Salam and not towards the opposite direction i.e. Towards the Court of the D.B. Slightly before that Ahmad Din brother-in-law of Sabir Ali petitioner shook hand with the deponent and went away and did not come towards the Court Room."
5. The petitioners placed on record the cause list of the said Division Bench for 10th March, 1984, which makes a mention of the part heard case, namely, R.F.A. No, 165 of 1981, Muhammad Sadiq, etc. v. Zulfiqar Abid Din in which Mr. Iftikhar Ali Sheikh, Advocate, was required to appear before Division Bench. Moreover, they filed the affidavit of Ch. Muhammad Sadiq, Advocate, dated the 21st March, 1984. He was opposite counsel in the case argued by Mr. Iftikhar Ali Sheikh, Advocate, before the Division Bench.
6. Before examining the merits of this petition, I would like to deal with the objection of the respondent that this Court has no jurisdiction to restore the civil revision. It was contended by his learned counsel that there was no provision in the Code of Civil Procedure for restoration of a revision petition dismissed in default and, therefore, the petition in hand was not competent. In this connection, reliance was placed by him on Khan Sahib Khan Muhammad Saadat All Khan v. The Administrator, Corporation of City of Lahore PLD 1949 Lah. 451 and Messrs Ganisons Industries Ltd., Karachi v. Mirza Akhlaque Ahmad PLD 1974 Kar.
339. In these cases, it was held that a civil revision dismissed in default could not be restored. The question agitated by learned counsel for the respondent was raised before me in Babu v. Mst. Niaz Bibi PLD 1982 Lah. 192 as, well and by relying on Municipal Committee, Jhelum v. Maulvi Muhammad Shafi 1971 SCMR 744, Jan Muhammad v. Muhammad Asghar PLD 1981 SC 513, Syed Iqbal Hussain Shah v. Abdul Ghani and others PLD 1967 Lah. 633 and Jiwani v . Bhagel Singh 97 P R 1907 it was held by me that a civil revision dismissed in default could be restored if sufficient cause is shown for such default. In view of the case-law relied upon by me in Babu's case, I, with respect, express my inability to follow the dicta in the cases of Khan Sahib Khan Muhammad Saadat Ali Khan and Messrs Ganisons Industries Ltd., Karachi although I have lot of regard for the learned and eminent Judges who had decided the said two cases, cited by learned counsel for the respondent.
Resultantly, I adhere t the opinion delivered by me in Babu's case and hold that this Court has jurisdiction to restore the petitioners' civil revision dismissed for want of prosecution if there is sufficient cause for their shortcoming.
As for the absence of learned counsel for the petitioners, in view of the cause list of the Division Bench, the affidavit of Ch. Muhammad Sadiq, Advocate, and the affidavit of the Clerk of Mr. Iftikhar Ali Sheikh, Advocate, I have no doubt in my mind that Mr .B Iftikhar Ali Sheikh, learned counsel for the petitioners, was busy before the Division Bench when the civil revision was called on by this Court. He had, therefore, sufficient cause for his non-appearance. The plea of the respondent's attorney regarding the movements of Mr. Iftikhar All Sheikh, finding mention in his (attorney's) affidavit, dated 21st March, 1984, it is nothing but a cock and bull story and I am least impressed by it.
7. What Mr. Iftikhar Ali Sheikh had, however, omitted to do with that he did not give timely information to this Court regarding his engagement before the Division Bench on 10th March, 1984.
According to an office order appearing at page 87 of the High Court Practice and Procedure by Mr. Faiz Muhammad Sadiq (1976 Edition), he should have left a chit with this Court stating that he was going to be busy before the Division Bench but he did not do so. The said office order is of 20th November, 1965 and reads as under:- "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."
' Although the Clerk of Mr. Iftikhar Ali Sheikh had no official standing, as per the view expressed in Nuzha Bint E1-Haj Suleman Abu Khadra v. Haji Ibrahim Saleh El-Helou and others PLD 1948 P C 94, yet he too did not appear before this Court on either of the two occasions when the case was taken up, I distinctly remember that on the above date when I resumed judicial work after interval for tea I was informed by my Reader that the Clerk of learned counsel for the petitioners had contacted him (Reader) during the interval and he (Reader) had told him (Clerk) that the case would be called again immediately after the interval. Despite that even the Clerk did not care to appear before me when the case was called on again at 11-11 a.m. After interval. Regarding the absence of his Clerk, at the time of second call, it was submitted by learned counsel for the petitioners, during the course of his arguments, that when he was making submissions before the Division Bench, his Clerk was also busy with him the (Clerk) was giving him the reference books relied upon by him to support his submissions. I am not satisfied with this explanation. In view of what my Reader had told the Clerk, he should have come to this Court after interval to make request for adjournment of the case and during the short time which would have been taken by the Clerk for so doing the reference books could be picked up by the learned counsel himself.
8. This brings me to the absence of the petitioners. They are four in number. Sabir Ali is peitioner No,
1. He explained in his affidavit that petitioner No,2 is his wife and she is a Pardahnisheen lady while petitioners Nos. 3 and 4 are his nephews. It was submitted by him that he looked after the litigation on behalf of the other petitioners as well and that he had no information of the case as he lived in a far off village. According to him, his counsel had not informed him about the date of hearing. It is a matter of common knowledge that in the cases represented by lawyers the parties rarely enter appearance before this Court. It is also not infrequently that lawyers do not inform their clients about the dates of hearing. I am, therefore, inclined to accept the plea of lack of knowledge of the date of hearing raised by Sabir Ali. The respondent's version that Sabir All was present in the Court premises on 8th March, 1984 and his brother-in-law on 10th March, 1984 was controverted by the affidavits filed by the petitioner. I am, therefore, not prepared to accept that any relation of Sabir All was present on the High Court premises on 10th March, 1984, but has deliberately absented himself from this Court.
9. In view of what has gone above, I am inclined to restore the civil revision. The law also favours adjudication on merits. I, however, want to compensate the respondent for the expense and inconvenient to which he has been put due to failure of the petitioners and their counsel to enter appearance before this Court on the date when the civil revision was dismissed for non- prosecution. Earlier too, the civil revision was dismissed for want of prosecution and non-deposit of process fee but it was restored. It is, therefore, a fit case for burdening the petitioners with costs.
This petition is, accordingly, accepted and the civil revision is restored to its original number subject to payment of Rs, 1,000 as costs. The case shall now come up on 8th July, 1984 for payment of costs.