' These two connected FA.0s. By Mst. Salamat Bibi raise common questions for decision and, therefore, are being disposed of by a single order.
2. FA.O. No,32 of 1983 and F.A.O. No,36 of 1983 have been filed against the orders of a learned Addl.
District Judge, Faisalabad, dated 10-1171982 whereby he refused to restore the two appeals of the appellants inter alia, for the reason that the absence of the appellants could not be held to be bona fide. The dissatisfied appellants then filed these two first appeals against the orders before the High Court. Both appeals were admitted to regular hearing and have been taken up for disposal today.
3. Learned counsel for the appellants at the very outset expressed his desire to withdraw the appeals on the ground that he has no instructions from the appellants. When asked by me to explain as to what did he really mean or imply while raising the plea of want of instructions in order to withdraw the appeals, he elaborated that he had not for quite some time heard from the appellant lady. I asked the learned counsel whether any professional fee charges were in arrears?
He replied in the negative. I offered him ample opportunity for elaboration of his submissions.
Nothing substantial was submitted by him except the conventional remarks of want of instructions.
4. After having given a serious consideration to the plea, I have reached the conclusion that the practice of using the phraseology of "no instructions" and seeking dismissal of the appeals as withdrawn by the learned counsel for the appellants was wholly unsustainable in the facts and circumstances of this case. It is not denied that the learned counsel was duly briefed and instructed by the appellant on being engaged to file and prosecute the appeals. It is also not denied that he had been paid his professional fee. It is not denied that he drafted the grounds of appeals and appended therewith relevant documents necessary for the decision. In this background, I am at a loss to understand as to what is meant by him when he submits that he is not being given instructions. The instructions which were received by the counsel at the time of accepting the brief and filling the appeals, in my view, must hold good even today unless it is shown that altered state of facts or circumstances warranted fresh instructions. Nothing of the sort has been spelt out by the learned counsel before this Court. In these circumstances I called upon the learned counsel to argue the appeals on merits and did not feel inclined to dismiss the appeals for want of instructions. I am not ready to adopt any measure or course of action which is likely to shake public faith and confidence in the judicial system or its institutions or result in failure or miscarriage of justice.
3. Coming to the merits of the case learned counsel points out that the appeals were dismissed on 13-3-1982. He had filed a copy of the order of a learned Magistrate at Faisalabad in a criminal proceeding. According to the Qalundara of witnesses, Mst.Salamat Bibi appellant figures as witness No,1 in the case. The order of the learned Magistrate dated 20-2-1982 shows that on that date no witness appeared and accordingly he ordered presence of the witnesses to be secured through bailable warrants in the sum of Rs,2,000 each.
6. Learned counsel for the appellants states at the Bar that the order of the learned Magistrate dated 20-2-1982 was before the learned Additional District Judge and he failed to properly comprehend or construe it. The learned Additional District Judge has even taken exception in his impugned order to filing of application for restoration on 20-3-1982 for absence on 13-3-1982, it is further submitted. Application for restoration can be filed within thirty days as provided in Article 168 of the Limitation Act read with relevant provisions of the Code of Civil Procedure, and a person is fully within his right to move an application within that time and no adverse inference can be drawn on that basis. This is a ground for decision by the learned Additional District Judge and, speaking with respect, this was wholly an irrelevant consideration which has crept into the proceedings and thus vitiated the impugned order. Apart from this aspect before dismissing the appeal or application for restoration the learned Additional District Judge should have looked into nature of the lis before him and if he had cared to find out he would have realised that the appeals were pending on behalf of a widow and her minor children. I may observe that a female and more so a widow in our society in pursuing litigation is under certain amount of disability as compared to males. A further ground which weighed with the learned Addl. District Judge was that presence of appellant No, 1 was not recorded in the order of the Magistrate dated 13-3-1982. This view is based on sketchy material before him. A copy of the order together with covering page shows that the appellant was a witness in the criminal case. Whether her presence was recorded or not was an act of the Court. It should have sufficed that she asserted that she had gone to the Magisterial Court in connection with that case which assertion is corroborated by the circumstances that she figures amongst the witnesses and the criminal case was in fact fixed for that date.
7. Apart from the legal lacunae noted in the order of the learned Additional District Judge, there is no want of authority for the proposition that Courts favour adjudication on merits. A Court performing judicial functions which is required to undertake adjudication of the rights of parties should be slow in a technical knock out by dismissing a case for default and it should also not be charry of restoring an appeal dismissed for default where a person shows sufficient cause/reasonable grounds for absence.
8. In these circumstances, I find that the orders of the learned Addl. District Judge under appeal suffer from vitiative infirmity and the same are accordingly set aside. The two appeals are accepted. Since nobody has turned up to contest these appeals despite notice, respondent is proceeded ex parte but there shall be no order as to costs.