' CH. HASAN NAWAZ (MEMBER).--For disposal in this order, we have got the petitioner's application for restoration of his appeal under section 4 of the Service Tribunals Act, 1973, filed on 23-12-1978, which was dismissed for non-prosecution on 7-12-1983 under Rule 19(1) of the Service Tribunal (Procedure) Rules, 1974, with the following order:- "Appellant absent on call. The appeal is dismissed for non-prosecution under Rule 9(1) of the Service Tribunal (Procedure) Rules, 1974. Parties to be informed."
2. It appears from the proceedings on the record that sometime later at 11.15 a.m. On the same day, after the appeal had been dismissed in default, Mr. M.N. Baig, Advocate appeared before the Tribunal and presented a letter which purports to have been written by Ch. Muhammad Farooq, Senior Advocate of the Lahore High Court, where he stated that the appellant had taken away the brief from him to argue the case himself after he had been enrolled as an Advocate and that he had no instructions to appear on his behalf for the prosecution of the appeal. He requested that suitable adjournment may be granted, so that the appellant who himself is an Advocate, may get an opportunity to plead his case.
3. The Tribunal disallowed this request with the following observations: "We do not know in what capacity the former counsel for appellant has requested for adjournment, because obviously, he no longer represents the appellant. If the appellant wanted an adjournment of the case, he could have made a request either himself or through a lawyer for adjournment.
Since no such request has been made by him, we are unable to consider the request made by the former counsel for the appellant."
4. It can also be noticed from the record that on 19-11-1983, the case was fixed by the office for regular hearing for 6-12-1983 and notices were ordered to be issued to the parties. On 6-12-1983, when the appeal eventually came up for hearing before the Tribunal, it was adjourned to 7-12-1983 with the following order: "None on behalf of the appellant. Hafiz Tariq Naseem, State counsel with Mr. Muhammad Akram, Assistant Establishment Division.
Appellant absent on call. To come up tomorrow."
5. Under the circumstances, the main ground for restoration of the appeal in the present application under Rule 19(3) of the Rules, is that the petitioner-appellant could not appear before the Tribunal on 6/7-12-1983, for the conduct of his appeal because he was under detention by virtue of Martial Law Order 12 and confined as a detenu in District Jail, Sialkot, whence he was released in the year 1984.
6. The application for restoration of the appeal was ultimately filed on 13-21986, evidently long after the dismissal of the appeal in default on 7-12-1983. The delay in seeking necessary relief was explained by the appellant with the pleadings that after having come out of jail in 1984, he detailed"
Mr. M.N. Baig, Bar-at-Law with an application for the restoration of the appeal but the same was not entertained on the plea that the Tribunal in any case had no jurisdiction to examine the orders passed by the Martial Law Authorities after the promulgation of the Provisional Constitution Order 1981." It was further pleaded that "the Constitution of the Islamic Republic of Pakistan 1973, has now been restored by the Revival of the Constitution Order 1985 and along with it all the powers of the superior Courts have been restored" and that, "therefore, this honourable Tribunal has the jurisdiction to examine the order which has been impugned in appeal."
7. The application has been opposed on the legal objection that it is barred by laches. On facts, it was admitted that Ch. Muhammad Farooq was no longer the petitioner's counsel on 6-12-1983, when his appeal came up for regular hearing. It was, however, pleaded that "the information that he was under detention and the request for adjournment could have been made through an authorised counsel on that date" and that "it is for the petitioner to prove that he was under detention on that date and when was released from detention." As for the contention in paragraph 6 of the petition that the application for restoration was not entertained on the plea that the Tribunal in any case had no jurisdiction to examine the orders passed by the Martial Law Authorities after the promulgation of the provisional Constitution Order 1981, the pleadings in defence are that the respondent has "no comments for want of knowledge regarding filing of application for restoration of the main appeal."
8. It should, here at this stage, be mentioned as a material circumstance that although the respondent at the end of the written statement have asked for the dismissal of the petition for restoration, it can only be spelled out of their pleadings that the petition has really been opposed, which is so because there is no specific denial of certain allegations of facts. As for instance, the petitioner has pleaded that he could not appear on the date of hearing because of his detention in jail under Martial Law Order 12 of the Orders. The pleadings in defence are that it is for the petitioner to prove that he was under detention on the relevant date and that "he has not supported his contention by any documentary evidence" to show that his non-appearance on 6-12-1983, was because of; confinement in jail. This obviously does not amount to a specific denial of the averments made by the petitioner-appellant. It can be asserted without hesitation that the respondent's pleadings in this respect are certainly evasive, so as to lend support to the contention that the petitioner was in jail as a detenu on the date of hearing and that his non-appearance was because of reasons physically beyond his control, which is more so in view of the consideration that the respondent is the Government of Pakistan who can ordinarily be supposed to have been in the knowledge of whether the petitioner was or was not detained at the relevant time. Merely to say that it is for the petitioner to prove that he was under detention, does not constitute any pleading, as can lead a person of ordinary prudence to the conclusion that the application is being opposed.
9. The considerations emanating from the evasive nature of respondent's pleading apart, the record provides us with sufficient grounds for holding that the appellant deserves the relief sought for by him and that the appeal should be restored by setting aside the order of dismissal in default.
It is an accepted fact that he had to appear himself for the conduct of the appeal. This position is also reflected from the Tribunal's observations made on 7-12-1983 on presentation of Ch. Muhammad Farooq's letter dated 6-12-1983, whereby he informed that appellant had taken away the brief to be able to plead his case himself. The request made by Ch. Muhammad Farooq, Advocate was turned down on the ground that he no longer represented the appellant.
10. Therefore, in the situation obtaining at the relevant time, the appellant had to appear in person for the conduct of his appeal. However, as already noticed before in an address to the facts of the case, it was physically impossible for him to do so because of confinement in District Jail, Sialkot, as a detenu under a Martial Law Order. Nothing more is required to establish that there were sufficient grounds for his non-appearance before the Tribunal on 6-12-1983, when his appeal was called on for hearing and that his absence was by no means deliberate, as could have created any justification for disallowing the relief sought for by him.
11. The facts present another aspect of the matter. As already pointed out before, the appeal came up for regular hearing before the Tribunal on 6-12-1983. None appeared on behalf of the appellant on that date. The respondent was represented by the State counsel Hafiz Tariq Naseem. The operative part of the Tribunal's order passed on that date said that "appellant was absent on call and that the case should come up tomorrow". It was on the following day, that is to say on 7-12- 1983, that the appeal was dismissed in default on account of the nonappearance of the appellant.
These circumstances lead us to the irresistible conclusion that the Tribunal's order dismissing the appeal for non-prosecution on 7-12-1983, cannot be legally sustained, for the simple reason that this was not the date fixed for the hearing of the appeal within the meaning of Rule 19(1) of the Rules, according to which dismissal in default could be ordered only on a date for the hearing of appeal. In the present case, the date of hearing was 6-12-1983, when the appeal came up for regular hearing before the Tribunal according to the previous order passed by the office on 19-11- 1983. The appellant was not represented and the appeal could be dismissed in default only on that date. This was not, however, done, whatever be the reasons, and the case was put off to the following day for which the appellant did not have any notice. In fact, no notice was ordered to be issued for the date, which incidentally is a proof of the fact that it was never meant to serve as a date of hearing. He had a notice to appear for the conduct of his appeal only for 6-12-1983 and his non-appearance attracted the provisions of Rule 19(1) of the Rules for creation of a situation favourable for dismissal in default. As it is, something which could have been done on 6-124983, was actually done on 7-12-1983, for which the appellant did not have any notice to appear and which was certainly not a date of hearing. Therefore, the order of dismissal in default passed on 7- 12-1983, was evidently a nullity in the eyes of law.
12. It is almost a settled principle of law that dismissal in default can be brought about only on a date of hearing, of which the parties have due notice. For authorities in support we may have recourse to 1973 SCMR 103 and PLD 1975 SC 678. In PLD 1975 SC 678, it was held that a date on which no investigation of any matter germane to the suit is to be performed by the Court and which is only fixed for the making of an order of an administrative nature, is not a date of hearing.
In the present case, as we have noticed, the appeal was adjourned to 712-1983 from 6-12-1983 without specifying that it will be for regular hearing. That it had in fact not been so, is clear not only from the fact that it had not been specifically mentioned in the order of 6-12-1983, but also from the fact that no notice was ordered to be issued to the appellant who was unrepresented on that date.
13. Leaving aside the merits of the case for restoration of the appeal, as I understand from the respondent's pleadings, the application for restoration is being opposed only on the ground of laches, which incidentally was the only ground available to the respondent, in view of the fact that no limitation has been prescribed for filing an application for restoration either under rule 19(3) of the Rules or any other law. Under section 7 of the Service Tribunals Act, only the provisions of sections 5 and 12 of the Limitation Act apply to the appeals before the Tribunal. No period of limitation has been prescribed in the Code of Civil Procedure for applications under Order IX Rule 9 of the Code, for restoration of a suit dismissed in default and these applications have to be brought within 30 days from the date of dismissal of the suit under Article 163 of the Limitation Act or under Article 183 of this Act, where the plaintiff is not aware of the date of hearing. But as already noticed, no limitation has been prescribed for applications for restoration of an appeal dismissed under Rule 19(1) of the Rules.
14. Even if a period had been laid down, the ground of limitation would not have been available in this case, simply because of the reason that 7-12-1983 was not the date of hearing and by virtue of this circumstance alone, the order of dismissal in default passed on that date was without any legal effect whatever and no limitation, under the circumstances, could have run against the petitioner for a possible bar in approaching the Tribunal with an application for restoration.
15. The petitioner's explanation for delay is that he did try to file an application for restoration through his counsel after having come out of jail in 1984 and that it was not entertained by the office on the plea that the Tribunal did not have the jurisdiction to examine the orders passed by the Martial Law Authorities. This fact has been supported in an affidavit by the petitioner's counsel Mr. M.N. Baig, who deposed that he went with an application for restoration to the office of Federal Service Tribunal, where he was told that the order of dismissal having been passed by the Martial Law Authorities, the Tribunal did not have the jurisdiction to entertain the petition. There is no reason to disbelieve the deposition of Mr. M.N. Baig who is a Senior Advocate.
16. Therefore, I find no reason to dispute the fact that the appellant did make an attempt to file an application for restoration after having been released from jail in the year 1984. Since it was not entertained, he came to the Tribunal again with the present application in February, 1986, soon after the proclamation of withdrawal of Martial Law issued on 30-12-1985, which revoked the proclamation of 5-7-1977 imposing Martial Law in the country and repealed the Laws (Continuance in Force) Order 1977, as also the Provisional Constitution Order of 1981. This caused a genuine impression that the lifting of Martial Law had resulted in the restoration of the powers of the superior Courts. He promptly came to the Tribunal for the restoration of his appeal after he sincerely believed that it had the jurisdiction to examine the validity of the order challenged by it.
17. Under the circumstances, he was by no means guilty of laches, which means negligence or undue delay, such as would disentitle a person to remedy. I feel no difficulty in finding that the appellant has been vigilant in the pursuit of his matter and that no wanton, undue and deliberate carelessness or disregard can be attributed to him, as can possibly attract the mischief of the principle of laches, so as to disentitle him to a favourable exercise of discretion given to the Tribunal under Rule 19(3) of the Rules, which lays down that the Tribunal may restore an appeal dismissed in default on such order as to costs as it may deem fit. I am of the view that grant of the petitioner's application for restoration of the appeal would, under the circumstances of the case, be a reasonable and judicial exercise of discretion conferred upon the Tribunal.
18. Yet another aspect of the matter becomes available from the provisions of section 5(2) of the Service Tribunals Act, 1973, which provides that a Tribunal shall, for the purpose of deciding an appeal, be deemed to be a civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908. These powers include those mentioned in section 151 of the Code which lays down that nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. It has already been held that the order of the dismissal in default passed on 7-121983, is not legally sustainable; which brings about a situation as would have justified the invocation of powers under section 151 of the Code to strike down the impugned order to promote the ends of justice, even if either the statutory bar of limitation or that created by the principle of laches would have been there.
19. For these reasons, I am inclined to hold that the application for restoration of appeal should be allowed. The order of dismissal of appeal in E default passed on 7-12-1983 is, therefore, set aside and the appeal is restored to its original number.