' AJMAL MIAN, J---By this common judgment, we intend to dispose of the above two appeals as they are directed against orders dated 26-9-1989 passed by the learned Chief Justice of the Lahore High Court upon C.MAs. Declining the appellants' applications for restoration of the writ petitions in which they claimed the suit land on the basis of possession, which were dismissed on 26-4-1986 for non-prosecution on account of non-appearance of the appellants and their counsel.
Leave to appeal was granted to consider, whether personal notice to appear was necessary to the appellants' counsel who was practising outside Lahore.
2. The brief facts are that the suit land was allotted to the claimants. The appellants filed Writ Petitions Nos.146-R of 1984 and 147-R of 1984 for seeking allotment of the same on the basis of their possession. A report was called for on 24-7-1984 from the department. It was also ordered that the status quo shall be maintained in the meantime. It appears that the writ petitions came up for further proceedings on 15-4-1986 after the receipt of the report, but nobody was present on behalf of the appellants. The learned Judge in chamber before whom the above writ petitions were fixed, passed the following order:- ' Nemo for the petitioner.
' Report has been received. To be relisted for 26-4-1986."
3. It appears that as per order, the writ petitions came up for hearing on 26-4-1986 and as no one was present, the same were dismissed for non-prosecution on the above date. It further seems that the learned counsel for the appellants filed applications for the restoration of above writ petitions on 16-9-1989 i.e. After the expiry of nearly 3/1-2 years, in which inter alia the following averment was made:- "3. That this is worth-mentioning reverently that the counsel of the petitioner is an outside counsel, and in the past at all times he was being informed by the Office, through registered A.D. Post, but unfortunately, the office failed to do the needful at this time; as a result of which writ petition was fixed and dismissed in default as on 26-4-1986; for no fault of the petitioner or his counsel."
' But the above explanation was found by the learned Judge in chamber as unsatisfactory and, therefore, the above restoration applications were dismissed by the aforesaid orders. Thereupon, the appellants filed petitions for leave to appeal, which were granted to consider the above question.
4. In support of the above appeals, Sh. Muhammad Shafi, learned ASC appearing for the appellants, has contended that as per Rule 8 of the High Court Rules and Orders, Vol. V, Chapter 3, the appellants' counsel was entitled to a notice as he was practising outside Lahore and that fact was not controverted. To reinforce his above submission, he has invited our attention to the above Rule, which reads as follows:-- "8. Duty of counsel to attend on the date of hearing. Parties and their Advocates, Vakils, Mukhtars or Agents are required to attend the Court on the day or days for which their cases are set down, and on subsequent days until their cases are disposed of or are postponed: ' Provided that intimation of the Pacca date fixed is a case will be sent by registered postcard (A.D.) to such parties as are not represented by counsel. Such post card shall be sent to an address given by the party in response to the original notice of appeal calling upon him to furnish an address for service for the purposes of the appeal or if he fails to give such address within one month of the service of such notice of appeal, to his address as given by the appellant in the memorandum of appeal. The posting of such post card shall be deemed to be sufficient intimation to the party of the date fixed in the case: ' Provided further that a case in which an Advocate not ordinarily resident in Lahore has to appear, the Deputy Registrar may fix an "actual date" if such Advocate puts in a written request for that sufficiently in advance to give the other party or parties at least ten days' notice or a written request accompanied by the consent of the opposite counsel in the case. Such date shall not be altered except by an order of the Bench concerned or of the first Division Motion Bench if the case is not listed before a particular Bench."
5. A perusal of the above Rule indicates that the parties and their Advocates, Vakils, Mukhtars or Agents are required to attend the Court on the day or days for which their cases are set down, and on subsequent days until their cases are disposed of or postponed. The first proviso to the above Rule contemplates that intimation of pacca date fixed in a case will be sent by registered postcard (A.D.) to such parties as are not represented by counsel at the address referred to in the above proviso. The second proviso deals with fixation of a case in which an Advocate does not ordinarily reside in Lahore and it provides that the Deputy Registrar may fix an actual date if such Advocate puts in a written request for that sufficiently in advance to give the other party or parties at least ten days' notice or a written request accompanied by the consent of the opposite counsel in the case. Such date shall not be altered except by an order of the Bench concerned or of the first Division Motion Bench if the case is not listed before a particular Bench.
6. Strictly speaking, the provisos to the above Rule are not applicable to the cases which are not listed for pacca hearing. In the present case, the writ petitions were not admitted to regular hearing. It was the duty of the appellants and their counsel to have made enquiries. However, then it was submitted that factually the appellants counsel had been receiving notices from the Court under registered acknowledgement due as averred by him in the above-quoted para. 3 and, therefore, he was justified in presuming that such a notice would be served on him before fixation of the case in the Court.
7. In the interest of justice, we are inclined to allow the above appeals and to remand the cases for hearing of the writ petitions at the stage at which they were when they were dismissed for non- prosecution. The appeals stand disposed of in the above terms, with no order as to costs.