The present petition was dismissed for default of the petitioners and their counsel on the 16th of October 1970. On the 4th of December 1970 the petitioners filed an appli--cation under section 151, C. P. C. For restoration of the petition. In order to deal with this application it will be necessary to set out certain material facts.
2. The main petition was filed on the 19th of May 1969 and it is admitted that on that date the third respondent, Syed Ahmad, had already died. This fact was brought to the notice of the learned counsel for the petitioners by an affidavit sworn by the respondent No. 2 and filed fn this Court on the 26th of March 1970.
3. Be that as it may, on the 20th June 1970. The learned counsel for the petitioners made an application before the learned Senior Vacation Judge requesting that his matters may not be fixed for hearing in the month of July, since he was suffering from a serious illness. This application was allowed and it was ordered that the counsel's work should not be fixed for the me nth of July 1970.
Then on 29th of July 1970, a second application was made by the learned counsel for the petitioner praying that his matters may not be fixed till October 1970. By this time, it would appear that the learned counsel had been hospitalised in a case of gangrenous thrombosis of the foot. On this application the learned Acting Chief Justice on the 1st of August 1970, ordered that he would like to hear the learned counsel. This order did net come to the knowledge of the counsel because he was to the hospital. In the first week of September Mr. Iqbal Baloch, the learned counsel for the petitioner, left for England where eventually his leg was amputated and he remained in the hospital for several months. During this period he had requested Mr. Zafar Alam, Advocate, to look after his work. Mr. Zafar Alam, in so far as the present Writ Petition is concerned did appear when this case was fixed on 14th of September 1970 and obtained an adjourn--ment from this Court. It would, however, seem that he did so only as holding brief of Mr. Iqbal Baloch. Then on 16-10-70 the matter was called up before his Lordship the Chief Justice. On this date the petitioners and their counsel were absent and the learned counsel for the respondent explained to his Lordship the Chief Justice that the petitioners' counsel had evidently met with an accident abroad and was hospitalised. He further stated that respondents Nos. 2 and 3 had died and no appli--cation for bringing their legal representatives on record had been filed till then. The learned Chief Justice observed that this was a case of callous negligence and dismissed the petition for non-prosecution. The circumstances under which the learned counsel had to leave for United Kingdom and the steps that he had taken to have the matters attended to was not brought to the knowledge of the Chief Justice.
4. It is stated that on the 21st of December 1970, the petitioners, after several letters to their counsel had failed to elicit any response, approached a lawyer, Mr. A. J. Memon, for making inquiries about their case. It was then that Mr. A. J. Memon came to know that the petition had been dismissed on the 16th of October 1970. On the following day an application was filed for restoration of the main petition.
5. The questions which arise for consideration are, whether the learned counsel for the petitioners was, or the petitioners were, truly negligent in the prosecution of the case. In the light of the facts that have now been brought to my notice I would be slow to conclude that this is a case of callous negligence. The learned counsel for the petitioners had taken reasonable steps or at least such steps as any other counsel in his place would have taken to ensure that his cases are either adjourned or are looked after. The condition of the learned counsel for the petitioners was such that it did not permit of further arrangement. In fact one hardly needs to dilate upon the painful nature of the affliction which he suffered from. He had admittedly asked a counsel hereto look after his work who slipped on one occasion. This would hardly be sufficient to bring the latter's conduct within the description of negligence.
6. Now so far as the petitioners themselves are concerned it is not denied that they are residents of a village in the interior of Sind. They had themselves been writing regularly to their counsel for information about the case and upon failing to hear from him they themselves came to Karachi and engaged a counsel to find out the facts of their case. I have no difficulty in believing the affidavits filed in this connection, explaining the reasons ;for the delay. The learned counsel for the respondents stated that time of 30 days would start operating from the date of disposal of the petition and not from the date knowledge is gained about the dismissal. In the first place an application for restoration of a writ petition dismissed in default need not necessarily be under the provisions of Order IX, r.
9. It can well be under the provisions of section 151, C. P. C. In this view of the matter the provision with regard to limitation will have no application although the Court while considering the application under section 151, C. P. C. Will keep in mind the latches which may beset the particular application. Even otherwise if the provisions of Order IX, r. 9 were held to be applicable then following the rule laid down by the Supreme Court PLD 1969 SC 582 I would hold that time begins to operate from the date of knowledge of the dismissal and not from the date of dismissal itself.
7. In the above view of the matter I am inclined to restore the petition to file.
8. The learned counsel for the legal heirs of the respondents vehemently argued that since the main respondents, namely, respondents Nos. 2 and 3, had died and the case against the 4th respondent had been given up there was nothing to be restored. The argument, I am afraid, has no appeal to me. The question wholly is whether the petition, if alive, would be deemed to have abated against the dead respondents. This question has yet to be decided since the case is also against respondent No. 1, namely, Deputy Commissioner and Additional Settlement Commissioner, Khairpur whose order has been called in question in this petition. It may be, that the petition has abated or it may be that the petition has not abated. But for the purpose of the present application for the restoration of the main petition I am influenced by the fact that one of the respondents, namely, respondent No. 3 had died even before the main petition was brought. In other words although he was actually impleaded as a party at all, his joinder as such was wholly a nullity. The date on which his legal representatives are brought on record will be understood to be the date on which they are joined as respondents for the first time. The considerations will be totally different.
9. Now with regard to the case of respondent No. 2, who is said to have died on the 18th of August 1970 the application for bringing the legal heirs on record was filed on 9-1-1971, i.e. Less than 150 days after the death. The appli--cation, therefore is only for setting aside the abatement under O.
XXII, r. 9 and for joining of the legal representatives. The respondents in question admittedly lived in Multan and the petitioners live in a village in Sind. It is reasonable to accept that sometime must have been consumed for gaining full information of the legal representatives left behind by the respondents in a different province altogether. Taking into consideration the further circumstances under which the learned counsel for the petitioners had to leave his work and proceed abroad I would hold that sufficient grounds have been made out for the restoration of the main petition as also for the joinder of the legal representatives of the respondents Nos. 2 and 3.
10. For the reasons given above the applications listed today are allowed. Amended petition to be filed within two weeks.