1. ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought, against the dismissal by the High Court, of the petitioner's application for setting aside the dismissal of his Regular Second Appeal, for non-prosecution.
2. ' Another subsidiary question is also involved, namely, whether the appeal could also be dismissed for non-prosecution on account of failure of the petitioner to bring on record of the appeal, legal representatives of deceased (respondent No,2).
3. ' Learned counsel has relied upon the affidavit of Sardar Mahmood Khan, Advocate who had appeared for the petitioner in the High Court at Bahawalpur. He is a well-known very senior lawyer.
4. There is no reason for us not to act upon his affidavit. He has fully explained the circumstances in which the appeal was dismissed for non-prosecution. He has also given the reason why the bringing on record of the Legal heirs, got delayed. The circumstance that the application for restoration of the appeal was delayed has also been fully explained in the affidavit. As already observed if the affidavit is believed there was no reason not to restore the appeal.
5. As to the question; whether, the reason mentioned in the affidavit constituted sufficient cause for restoration, learned counsel relied on 'Jan Muhammad v. Muhammad Asghar' (PLD 1981 SC 513). It supports him, in that, Sardar Mahmood Khan had asserted in the affidavit that he had attended and appeared in the Court during the early working hours of the day and had made an estimate of time that on account of hearing of another case the petitioner's appeal would not reach and subsequently thought that it had been left over. If that were so it would be re-listed; and presumably that is why the delay in filing the restoration application took place. In the cited case similar explanation based on an estimate of time by a lawyer, was accepted.
6. On the question of impleading the legal representatives of the deceased respondent also the points raised by the learned counsel have, prima-facie, force One, whether it was not the duty of the respondents' side also to help and assist the Court in bringing on record the legal representatives of the deceased respondent; and, whether the appeal could not be decided effectively without impleading the said L.Rs, The afore-noted questions and those raised in this petition require examination.
7. ' Security Rs,5,000.
8. ' This petition is converted into appeal. Security to be deposited within two weeks. The appeal shall be prepared on the present record with direction for filing of all additional documents which would be necessary for the disposal of the appeal.