1. NASIM HASAN SHAH, J.--The petitioner's Writ Petition No.3655 of 1979 filed in the Lahore High Court came up for hearing on 10-10-1979 but as neither the petitioner nor its learned counsel were present, the petition was dismissed in default. On 14-11-1979, the petitioner filed an application under Order IX, Rule 9 C . P. C . Praying for restoration of the writ petition to regular hearing. The explanation given for not being present in the High Court on 10-10-1979 was that the writ petition had not been shown in the weekly cause list of the Court but had been included suddenly in the supplementary cause list but the same had not been supplied to the petitioner or its learned counsel. This application, however, was dismissed on 20-11-1979 by a learned Single Judge of the Lahore High Court on the ground that the petitioner had not filed "any application for condonation of delay before the office objection", and on the further ground that "he checked up and found that the supplementary list was published." The petitioner thereupon filed another application on the same date, i.e. 20-11-1979 Civil Miscellaneous 7455 of 1979 alongwith an application for condonation of delay praying that the order dated 10-10-1979 dismissing the petitioner's writ petition for non-prosecution may be set aside and the writ petition be heard and decided on merits. It was contended by the learned counsel that as the supplementary cause list had not been served on him the dismissal of the case in default should be set aside. The learned Judge in the High Court rejected this plea relying on two decisions of the Lahore High Court, namely, Iqbal Ahmad v. Sharif-un-Nisa PLD 1967 Lah. 1098 and Sawab Khan v. Dr. Abdul Hamid PLD 1968 Lah.
2. 1224 and went on to observe:- "Admittedly the supplementary list had been printed and published. The mere fact that the Bar Association did not supply the petitioner's counsel with the same does not entitle him to this relief."
3. The second application was, therefore, also rejected vide order dated 21-11-1979. Leave to appeal was granted (See 1987 SCMR 775) to the petitioner to consider the contention that despite successive applications, the learned Judge had failed to examine the petitioner's contention that the Bar Association had not supplied a copy of its supplementary list to the petitioner's counsel. It was also observed that it was never the petitioner's case that the Bar Association had not published its supplementary list. Its case was that the Bar Association had failed to send a copy of the supplementary list to its Advocate or to him. The further submission of the petitioner, namely, that the cases relied upon by the learned Judge were distinguishable because they related to cases in which counsel were absent, although their cases had been shown in the weekly list which had been received by them, was also taken note of. Mr.Zafarullah Cheema reiterated these submissions before us and further added that the High Court issues four kinds of lists, namely, (1)
4. Urgent Cause List (2) Motion Cause List (3) Weekly Cause List and (4) Supplementary Cause List. So far as first three cause lists are concerned there was no doubt, according to him, that it was duty of the counsel to see the notice board in the.. Bar Room with a view to ascertaining whether any of his cases were listed therein. Even though the weekly cause lists are supplied to the counsel by the good offices of the Bar Association but the duty of the counsel remained to obtain a copy of it and inspect it, in case it was not supplied to him. However, the position of Supplementary Cause Lists was altogether different, they were issued sporadically as and when it was necessary and the invariable practice was that such lists were supplied by the Bar Association's peon to the counsel whose cases were suddenly fixed therein.
5. Mr. Iftikhar Ahmad Dar, learned counsel for the respondent, relied upon Rule .5 in Part-A, Chapter 3 of the High Court Rules and Orders Volume V, the relevant portion of which reads as follows:- "5(a)--A register of civil cases, complete in every respect, will be maintained in the High Court.
6. From register cases will be taken up according to the order of institution for incorporation in a weekly list of cases to be heard by Division and Single Benches. For the convenience of counsel, a copy of the weekly list of Bench will be sent to the Bar, seven days before the beginning of every week. When work is likely to run short, the weekly list will be open to adjustment by counsel or parties on Fridays. The weekly list will be broken up into daily lists and daily lists will be sent to the Bar Room at 4-15 p. m. On the day preceding the date of hearing, except the lists for Monday, which will be supplied to the Bar Room at 12 noon on the preceding Saturday. Any cases not reached at the close of a day will ordinarily be placed at the top of the lists for the next day, and similarly any cases nor. Reached at the close of the last day of the sitting of the Court in a week, will ordinarily be placed at the top of the following week's list.
7. His contention was that as soon as a copy of the list of the Bench was sent to the Bar Association, this amounted to a notice to all' the Advocates whose cases were listed therein and it was the obligation of the members of the Bar to see this list and appear in the Court where their cases were fixed. In other words the act of sending a copy of the list by the Bench to the Bar had to be construed as sufficient notice to the members of the Bar, regarding the fixation of their cases.
8. We consider that ordinarily is correct. However, so far as Supplementary Cause Lists are concerned, we are inclined to agree with the learned counsel for the petitioner, on the basis of our own experience that these are usually issued in late hours of the evening and as it is normally not possible to examine them in the Bar Association,, therefore, a practice has been established to supply them to the counsel whose cases are fixed in such Supplementary Cause Lists. In this situation, we consider that the learned Judges, in the High Court erred in not examining the contention of petitioner's counsel that as the Bar Association had failed to supply him with a copy of the Supplementary Cause List his absence was excusable and his matter should not have been dismissed for default. We would, therefore, set aside the order of the High Court passed on 21-11- 1979 and send the case back to it for deciding it afresh. We think that the above noted contention of the petitioner's counsel may be taken up first and if he is able to satisfy the Court that the Bar Association had indeed not supplied him with copy of the Supplementary Cause List, to proceed to determine the case on the merits.
9. This appeal is, accordingly, accepted, in the above terms. The parties, however, are left to bear their own costs.