1. ' MUHAMMAD AFZAL ZULLAH, C.J.---This appeal through leave of the Court is directed against the order of the Lahore High Court; whereby the appellant's FA.O. No,300 of 1980 having been dismissed for want of prosecution, was not restored.
2. ' On the date of hearing before the High Court none had appeared from the appellant's side to prosecute the appeal. On an earlier date also none had appeared from the appellant's side to prosecute it.
3. ' It appears that on the earlier date on absence of the learned counsel for the appellant the learned Judge though could have dismissed the appeal for want of prosecution; yet keeping in view the usual casualness and sometimes the negligence and rarely with dishonest motives the Government matters are not diligently pursued, the learned Judge in the High Court did not pass the order of dismissal for non-prosecution. He instead passed the following order:- "Since it is an old and lengthy case, it shall be relisted for, 21st January, 1985, and 22nd January, 1985. No other pacca case shall be fixed for the said dates. This case will be taken up at 9-00 a.m., on 21st January, 1985 and if the hearing is not concluded on the said date, it shall be heard again on 22nd January, 1985, at 9-00 a.m. On both these days, the office shall fix only such other work as can be disposed of within an hour."
4. ' In the petition for restoration of appeal Ch. Naseer Ahmad, Advocate who purported to act as Government Pleader, Punjab, tendered the following explanation: "That the counsel for the appellant appeared in the Court, when the Court started hearing in the morning. As there was still some time for the case to come up. The counsel for the appellant informed the Reader of the Court that his engagement is in a Katcha matter in another Court. The counsel went to attend that matter and when came back the case had been dismissed for want of prosecution a little while ago."
5. ' No explanation was offered why the Clerk of the counsel was not present to inform the Court regarding absence of the learned counsel for his other alleged engagement in a Katcha matter.
6. Nor there is any explanation for the failure of the department concerned of the appellant, for not having made any arrangement for representation and appearance through a departmental representative. In this background it is necessary to notice here what was recorded on the day when the appeal was dismissed by the High Court for want of prosecution. It is noted as follows:- "This case was first called on at 9-00 a.m. When Mr. Qamar Riaz Hussain, Advocate, and Syed Shafiq Ahmed were present on behalf of the respondent but none had turned up to represent the appellant. It has again been called on now at 9-37 a.m. When position is the same."
7. ' During those days, it is stated at the Bar, the sittings of the High Court were from 8 o Clock in the morning.
8. ' The learned Judge in the High Court while dismissing the application for restoration of the appeal remarked that the appellant and the learned counsel for the appellant could not plead ignorance of the previous order; whereby, despite their absence the appeal was not dismissed and it was adjourned and fixed for 21st January, 1985 as noticed earlier. The learned Judge found as a fact that the counsel appearing for the appellant "did not take due care of the case despite the anxiety" expressed as noted earlier in so far as the learned Judge was concerned. His order shows that he was keen not only to save the appeal of the appellant/Government to the extent it was possible despite the earlier absence; but also for its disposal two full days were intended to be devoted to it.
9. No other work was fixed except for one hour, as noted in the earlier quoted order of the High Court.
10. ' Regarding the alleged information given by the learned counsel to the Reader, the learned Judge in the High Court observed that he himself being present in Court, he had no awareness of this ever having happened in the Court; i,e, the counsel talking to the Reader. The learned Judge also was certain that the Reader never informed the learned Judge about what the counsel had alleged; presumably, because the learned Judge did not believe the counsel's version. Not only this the learned Judge further remarked that the counsel had failed to mention the other Court, to which he had gone in the Katcha matter-- with the further remark that it was not known whether it was a Bench of the High Court or of some subordinate Court. It was noted that the particulars of the said case in which the learned counsel had gone for Katcha Peshi had not been furnished. Nor there was any indication in the explanation of the learned counsel as to when he was free from the so- called other Katcha Peshi matter. With this analysis the learned Judge was constrained to hold as follows:- "It cannot, therefore, be said that the learned counsel was actually busy before another Court when the appeal in question was dismissed for want of prosecution. There is an Office Order, dated the 20th November, 1965, issued by this Court, which has been reproduced at page 87 of High Court Practice and Procedure by Faiz Muhammad Sadiq. It is to the following effect:- 'No adjournment is to be granted on account of engagement in another Court unless counsel is occupied with a case being actually heard in that Court. In the latter case counsel has to send engagement slip under his signature to the second Court giving the particulars of the case with which he is busy and the time he will take before concluding it.'
11. ' Learned counsel for the petitioner did not send any chit in compliance with the above order."
12. ' I waited for the petitioner and his learned counsel for about 37 minutes and none had cared to enter appearance during that time. Even Clerk of the learned counsel did not bother to appear before me to state that the learned counsel was busy elsewhere.
13. ' As stated earlier, there is absolutely no explanation for the absence of the petitioner, namely, Province of the Punjab through Secretary, Government of the Punjab, Communication and Works Department, Lahore. The said Department has hundreds, if not thousands, of employees in Lahore but none of them had entered appearance before me on the day when the appeal was dismissed in default. Thus, the absence of the petitioner goes unexplained.
14. ' It has been stated in the petition, by learned counsel for the petitioner, that subject-matter of this case is a huge amount of money and if the case is not restored the petitioner is likely to suffer an irreparable loss. If the petitioner was conscious of the fact that huge amount was involved in the appeal, the petitioner and his counsel should have taken extra care in the matter of its prosecution.
15. Instead of so doing, however, they almost ignored it. Quantum of the sum involved in this case cannot, therefore, be made use of by the petitioner for avoiding consequences of its own negligence and that of its counsel.
16. ' I regret to point out that before the dismissal of the appeal this time, i,e, on 21st January, 1985, it was dismissed in default on three previous occasions i,e, on 6th December, 1981, 10th November, 1982, and 8th April, 1984, but was restored. All this is indicative of the fact that the petitioner was not keen in prosecuting the appeal. The petitioner and its counsel, then prolonged the agony of the respondent who had been awarded a sum of Rs,1,51,469 about five years ago but not a penny has been paid to him as yet."
17. ' In the light of the foregoing analysis and findings the learned Judge held that the appellant and the counsel for the appellant as well as the representatives of the appellant Department for prosecuting the appeal, were negligent. Accordingly, restoration was refused.
18. Leave to appeal in this case was granted in order to examine: whether the statement of the counsel, if not found false, could be considered a valid cause for restoration; and, the same, having been shown as a mistake in the estimate of timings by the counsel when appearing in the same Court before two Benches, whether could be treated as good ground for refusal to restore.
19. Following cases decided by this Court on this issue which could go in favour of the appellant were also then noticed:
(1) CP-520/84 (decided on 22-2-1989).
(2) CP-892/84 (decided on 18-3-1989).
(3) CP-675/85 (decided on 27-3-1989).
(4) PLD 1966 SC 461 (Jan Muhammad v. Abdul Ghafoor).
(5) PLD 1966 SC. 467 (Salamat Bibi v. Settlement and Rehabilitation Commissioner).
20. ' There is another case, which could go in favour of the appellant on the question of wrong estimate of timings by the counsel. It is reported Jan Muhammad v. Muhammad Asghar (PLD 1981 SC 513).
21. On this point (the law declared by this Court) there are some more cases in which the view taken in the case of Jan Muhammad was reiterated.
22. ' However, according to the findings rendered by the High Court and which have been reproduced above in extenso, negligence of the learned counsel appearing in the High Court on behalf of the Provincial Government, who has also described himself as Government Pleader, is involved. We have also carefully examined the plea taken by the counsel before the High Court where he had submitted his explanation in writing.
23. Nothing was produced in the High Court nor it has been produced before us to show that the said findings by the High Court can be demonstrated to be incorrect. Even the inferences drawn by the learned Judge from admitted facts relating to what happened on various occasions before the High Court, are irresistible. Although the possibility cannot be ignored that the learned counsel may have another Katcha Peshi case but as held by the High Court we are convinced that he was not prevented from appearance in the present case on account of said Katcha Peshi .Case. The learned Judge had himself taken care in fixing this case at 9-00 a.m. For both days of hearing with a direction to the office to fix only that much work before the learned Judge prior to the taking up of this case, which could be finished within an hour. Learned Judge had made correct estimate of his hearing of the Katcha Peshi matters before this Regular Appeal was to be taken up; as also, the need of the counsel appearing in this case, if any one of them had the Katcha Peshi on that d4y.
24. Both the learned counsel appearing from the respondent's side had appeared on time. There is no material on the record that the learned counsel for the appellant was not free from the Katcha Peshi appearance before 9 o'clock; and that actually he was on his legs before any other Bench at that time so as to prevent him from coming to the Court where this matter was pending. From the finding of the High Court it can easily be culled out, that while keeping the regard for a member of the Bar, the learned Judge refrained from stating the obvious; namely, that the appellant's counsel had indulged in a false explanation. Accordingly, the appeal was not restored. In the impugned order it is clear that the learned Judge was of the view that there was no possibility of the counsel's statement being correct otherwise he would have definitely restored the appeal.
25. ' The point regarding the information by the learned counsel to the Reader raised in the appeal also is without any force in this case. It was in order to avoid embarrassing situation in the High Court when a lawyer would say that he spoke to the Reader and the latter would contradict him, that a rule was devised for the submission of an engagement slip. It has been a very beneficial practice in the High Court. The respectable members of the Bar were happy with this arrangement so as to avoid embarrassm ent of being contradicted-by a Court Reader. No such slip was submitted in the High Court nor reliance has been placed on any such slip before us. Nor there is any mention thereof in the grounds taken in this Court. Moreover as indicated in the earlier part of this judgment the learned Judge instead of saying that the learned counsel had made a false statement in the High Court with regard to falsely involving the Reader of the Court in this matter, has observed that he himself did not notice the counsel talking to the Reader nor the Reader informed the learned Judge. There can be no possible alternative but to think on the line that the learned Judge did not believe the learned counsel on this issue also.
26. ' Be that as it may, even before this Court Reader's affidavit or even bare statement has not been produced to support the version.
27. ' Another point taken in the appeal before us; namely, that the appeal had been taken in the earlier hours of the Court, therefore, it should not have been dismissed for non-prosecution, is again devoid of any substance. Ordinarily it is true that the important appeals, as observed in the impugned judgment, are not dismissed for non-prosecution casually and the Court waits for the counsel sometimes even if he is at fault. In this very case on the previous hearing the Court had not dismissed the appeal for non-prosecution even though the counsel had not appeared at all on that date. In the circumstances (noted in the impugned judgment) of this appeal with the background of an earlier absence of the learned counsel; two days having been reserved for it; with a direction for fixing no other Pacca case for these two days; and, time fixed at 9-00 a.m., the argument regarding "early hours", is, to say the least, very naive.
28. ' The ground taken in this appeal that the dismissal of the appeal on previous several occasions should have been separated from the last dismissal for non-prosecution in the circumstances of this case, is of no avail to the appellant. It is necessary to mention this in order to highlight the manner in which the department concerned had dealt with the appeal and still expected from the Courts (as the learned counsel for the appellant has expressed in the grounds of appeal before this Court also) that they show indulgence to the Government, when huge loss to the public exchequer is involved. It is correctly expected and indulgence is often shown by the Courts; but the Government representatives, whether lawyers or others, conducting the cases for the Government, it is presumed, have the not licence not to be fair to public exchequer. In this case we cannot help but to express our view that the learned counsel for reasons, prima fade, of his own, was not at all fair to his client--nor were the departmental officers who were concerned with making arrangement for appearance on behalf of the appellant, through counsel, his clerk and the departmental perokar/representatives- all of them. The latter, the departmental representative, deputed for this very purpose was also unfair to the exchequer. We have not mentioned the extreme unfairness and disrespect shown to the Court itself, in this case by the lawyer concerned; despite, the learned Judge having shown due courtesy to the appellant a respectable litigant and their representatives, in so far as the proceedings in the Court are concerned.
29. ' The last argument is again relatable to the innocent tax-payer-involvement of huge amount of the Government which, according to learned counsel, is about 1-1/2 lacs. We also feel very strongly about it. However, the High Court did appreciate this aspect of the case and took a very painful decision as it appears from the language used in the impugned judgment; together with the reasoning, on which it is based. We, at the same time are also of very strong view that the learned counsel appearing before the High Court, the departmental officer incharge, the officials concerned as well as the departmental representatives deputed to remain present in Court, position-wise are responsible for the undoubtedly huge amount involved in this case. They will be presumed to know that the loss was not personal to them and the fact that it was to be a loss in the ultimate analysis, to the public exchequer and tax-payer. In our system of law there is no licence of liberty for people dealing with the amounts belonging to the public, in this cruel manner.
30. The practice so far that those who are responsible for the Government to suffer such losses are not responsible themselves so as to compensate it, has no support of any legal or moral indulgence.
31. ' We, therefore, while dismissing the appeal also direct as follows:-- That steps shall be taken by the Chief Minister who is also responsible to the public exchequer, at a very respectable level say at the level of the Secretary to the Government, to take positive effective measures for recovery of the entire amount involved in the loss in dismissal of the appeal, for non- prosecution. Amongst others it will be from the lawyer concerned, from the departmental representatives who are found responsible for not arranging appearance in addition to the expected appearance of the counsel. The recovery in fairness should be proportionate to the responsibility of each individual-- the highest from the lawyer-- because he acts as an ultimate custodian and recipient of the trust of his client. The recoveries from the departmental low paid officials can be moderate. This shall be without prejudice to any other punitive action that may be taken. It is also directed that in future if there are any such or similar findings, as are rendered and affirmed by this Court in the foregoing discussion, the departmental heads shall automatically be duty bound to take similar steps as specified above.
32. ' In the light of the foregoing discussion and the remarks we find no force in this appeal; and while dismissing it, spare the public exchequer from further loss of directing payment of the costs to the other side. Accordingly, there shall be no order as to costs.