This appeal is directed against order, dated the 21st July, 1991, passed by Ch. Ahsan Ahmad, Additional District Judge, Faisalabad. By the said order, he refused to restore an appeal, filed by the appellant, Riaz Ahmad, which had been dismissed in default.
2. The appellant's appeal came up for hearing before the learned Additional District Judge on 20th February, 1990. On that day the appeal was called on thrice--once at 10 A.M., then at 12.30 p.m. And lastly at 3 p.m., but no one turned up to prosecute it although the respondent, Ghularn Ahmad, was present on all the three occasions when the appeal was called on. In the application made by the appellant for restoration of the appeal it was stated by him that he could not enter appearance due to certain unavoidable reasons and his counsel was busy before the other Courts. His explanation did not find favour with the learned Additional District Judge with the result that he declined to re-admit the appeal for hearing and dismissed the application.
3. It was contended by learned counsel for the appellant that the appellant had to come from Sargodha and was late in reaching the Court. As for his counsel, his plea was that he was busy before the other Courts.
4. In the aforesaid application also, it had been stated that the appellant lived in Sargodha. Even if it was so, he should have left Sargodha well in time, because he knew the distance which he had to cover before reaching the Court. As indicated above, since the appeal had been dismissed at 3 P.M., even if he was late in leaving Sargodha he should have been in Faisalabad before 3 p.m. It. Is, however, noteworthy that application for restoration of the appeal was made on the following day, namely, 21st July 1991, and the stamp affixed thereon too was purchased on 21st July 1991. It i~, therefore, doubtful that the appellant had ever come to Faisalabad on the day when the appeal was dismissed for want of prosecution.
5. As indicated above, in his application it was stated by the appellant that he could not reach the Court in time due to unavoidable reasons. Since these reasons have not been spelt out, his plea with regard to unavoidable reasons is nothing but a vague assertion. It, therefore, does not inspire confidence. This being the position, his plea was rightly repelled by the learned Additional District Judge.
6. As for the absence of the appellant's counsel it has been stated thathe was busy before the other Courts. According to the learned Additional District Judge it is a "routine excuse" which is put forth in such like cases. There is no affidavit by the appellant's counsel or by his clerk with regard to the engagement of learned counsel for the appellant before the other Courts. It is difficult to believe that he remained busy before the other Courts on all the three different occasions when the appellant's appeal was called on for hearing. It was the duty of learned counsel for the appellant to take as much care of the appellant's appeal as of the other cases booked by ' him for the fateful day but, it is regretted that he did not care to do so. He should have inquired about the appellant's appeal by noon time, if not earlier. He, however, did not bother about it till 3 P.M. When the appeal was dismissed for want of prosecution. Particulars of the cases in which learned counsel for the appellant was appearing on the three occasions when the appellant's appeal was called on, have not been furnished. All this speaks of gross negligence of the appellant's counsel.
7. Law is well settled on the point that a case dismissed in default cannot be restored unless cogent explanation is furnished both for the absence of the ID party initiating the case as well as for the absence of his counsel. Case of Zulfiqar Ali v. Lal Din and another 1974 SCM R 162 is one of the several, authorities in point. In the instant case, there is no convincing explanation with regard to the absence of the appellant and that of his learned counsel. In this state of affairs, the learned Additional District Judge was perfectly justified in rejecting application for restoration of the appeal.
8. There is no merit in this appeal. It is accordingly, dismissed in limine