MIAN NAZIR AKHTAR, J. This F.A.O. Arises out of a suit filed by the appellants on 13.10.1986 in the Court of the Civil Judge, Lahore, for grant of permanent injunction restraining the respondent from interfering in the appellants possession over the shop or damaging it or removing the joint wall the stores shown in the site plan. The appellants had also filed an application for grant of temporary injunction which was dismissed on 29.1.1987. The appellants an appeal against the said order which was dismissed for non-prosecution on 17.6.1987. An application was filed for re-admission of the appeal, which was also dismissed for non-prosecution on 6.4.1989. Another application was filed on 8.4.1989 for restoration of the earlier application for re-admission of appeal. This application was allowed and the application for re-admission of the appeal was restored on 22.10.1989. The said application was dismissed on merits vide the order dated 7.3.1990 passed by the learned Additional District Judge, Lahore. The last mentioned order has been assailed in the present appeal.
2. The learned counsel for the appellants urged that the appellate Court had wrongly dismissed the application for re-admission of the appeal. He also urged that originally, on 17.6.1987, the appeal was fixed for arguments and could not have been dismissed for non-prosecution because it Was not a date of hearing. In this connection, he placed reliance on the judgment of Federation of Pakistan and 2 others versus Muhammad Hanif (1981 CLC 130)-(NLR 1980 Civil Lahore 836).
3. On the other had, the learned counsel for the respondents urged that the judgment in the case of Federation of Pakistan and 2 others vs Muhammad Hanif( 1981 CLC 130) was not followed in a subsequent judgment in the case of Pakistan Day Memorial Committee and another vs. Mian Abdul Khaliq & Co. (1984 Law Notes Lahore 1038).He urged that the appeal was rightly dismissed for non- prosecution on 29.6.1987 as it was a date of hearing. He further urged that the application for re- admission of the appeal was rightly dismissed by the learned Additional District Judge because the application was not supported by an affidavit and that out of the four appellants, only one of them, namely, Chaudhry Saleem Ullah, claimed to be ill but there was no explanation as to why the other, three appellants did not appear in the Court. Even Saleem Ullah's illness was not proved because neither the medical certificate was produced nor an affidavit filed in support of the averments contained in the application. On 17.6.1987, the appeal was fixed for final hearing. It was definitely a date of hearing within the meaning of the law because the Court had to apply its judicial mind to the issues involved in the appeal and the contentions to be raised by the learned counsel for the parties for resolving the controversy. In case of absence of the appellant, the Court has the discretion either to dismiss the appeal for non-prosecution or adjourn the hearing to some other date keeping in view the facts and circumstances of each case. It was so held in the case of Malik Piran Ditta and others versus Ghulam Muhammad (1985 MLD (Lahore) 1140). In the case of Yousuf versus Mst Rabia (1985 SCM R 1066) the argument that after admission of the appeal the Court was under an obligation to peruse the record of the case and go into the merits of the same even though the appellant and his counsel were not present to prosecute the same, was repelled.
It was also held that the appellate authority was not required to consider the merits of the appeal when appellant himself did not prosecute the appeal. Hence, I respectfully follow the view expressed in the case of Pakistan Day Memorial Committee and another vs Mian Abdul Khaliq & Co. (1984 Law Notes Lahore 1038) and hold that the appeal was rightly dismissed for non- prosecution on 17.6.1987 and that it was not obligatory for the Court to decide the appeal on merits in the absence of the appellants and their learned counsel.
4. The appellate Court has given cogent reasons for dismissing the application filed under Order XL1 rule 19 of the C.P.C, for re-admission of the appeal. There is no explanation as to why Sana Ullah, Shaukat Ullah and Saif Ullah were not present in the Court on 17.6.1987. The claim that Saleem Ullah, appellant, was seriously ill was not substantiated either by a medical certificate or an affidavit.
Similarly, there was no explanation for the absence of the learned counsel for the petitioners on the said date. It was ruled in the case of Haji Ahmad Hassan versus Dr Mian Aziz Ahmad and 5 others (1979 CLC (Lahore) 629) that if a party engages a counsel, who was lacking in his sense of responsibility to the Court, it is he who should suffer and not the other side. In the said case, the appeal was dismissed for non-prosecution and the reason advanced was that the clerk of the learned counsel had fallen seriously ill and could not check the cause list. The learned counsel neither checked the list himself nor made alternative arrangements for its checking. In these circumstances, it was held that the appeal was rightly dismissed for non- prosecution and the application for re-admission of the appeal was dismissed. Hence, the learned Additional District Judge had rightly dismissed the application for re-admission of the appeal in the present case.
5. For the foregoing reasons, I do not find any merit in this appeal, which is dismissed, leaving the parties to bear their own costs.