This petition under section 151, C.P.C. Read with Order IX, Rule 9, C.P.C. Has been filed for restoration of the writ petition dismissed for non---prosecution on 27-11-1993, on the ground that the petitioner was represented by Khan Muhammad Younas Khan, Advocate of Lahore. However, he being an outside counsel, the petitioner has also engaged Mr. Muhammad Munir Paracha, Advocate of Rawalpindi to look after the case on unimportant dates in the absence of Khan Muhammad Younas Khan, Advocate. It is also stated that the case was fixed before this Court on 27-11-1993.
Khan Muhammad Younas Khan, Advocate, who was to appear on behalf of the petitioner and to argue the case could not reach Rawalpindi. A request was made by Raja Abdul Ghafoor, Advocate on his behalf on the ground that he could not reach Rawalpindi, therefore, the case be adjourned. It is also stated in the petition that Raja Abdul Ghafoor, Advocate was informed by the Court that on the last date of hearing Mr. Muhammad Munir Paracha, Advocate had entered appearance in the early hours and requested that the case be kept pending as he was busy before the Supreme Court and that he would appear at the later hours of the day but he did not turn up and the case was adjourned to 27-11-1993. It is further stated in the petition that Khan Muhammad Younas Khan, Advocate is the main counsel, who was engaged to argue the case and Mr. Muhammad Munir Paracha, Advocate was engaged only to look after the case on unimportant dates of hearing and had no instructions to, argue the case. It is also stated that on 17-11-1993 Mr. Muhammad Munir Paracha, Advocate made a request that his cases be kept pending and taken up at the later hours of the day but the request was not particularly with regard to this case. He made a general request that his cases be taken up at later hours of the day as he was proceeding to the Supreme Court. In para. 4 of this petition it is admitted that it was the duty of Mr. Muhammad Munir Paracha, Advocate, if not legal, at least moral, to appear in the Court on 27-11-1993 and he should have appeared but he could not do so as he remained busy in the Supreme Court. At the end, it is stated that the default of appearance is not mala fide, but is in the circumstances beyond his control. The said petition was replied by respondents 3 to 6. In written reply they have alleged that deliberately mis-statement has been made in this Court and the petitioner is not entitled to discretionary relief.
It is also stated that no sufficient cause for non--appearance of the petitioner himself having been advanced, no justification for the restoration of the petition is made out. On merits it was stated that the writ petition was filed by Mr. Muhammad Munir Paracha, Advocate who has been appearing in this case throughout the proceedings and Khan Muhammad Younas Khan, Advocate has only appeared on one date of hearing. It is also stated regarding averment of the petition that Mr. Muhammad Munir Paracha, Advocate had no instruction to argue the case in Court is not borne from the record. It is also stated that no description of the engagement before the Supreme Court by Mr. Muhammad Munir Paracha, Advocate having been given his engagement before the Supreme Court is not admitted. It is further stated that Mr. Muhammad Munir Paracha, Advocate has not appended his affidavit regarding correctness of the contents of application of the petitioner. At the end it is stated that no reason for non-appearance of the petitioner having been advanced, petition cannot be allowed to be restored. The reply is duly supported by an affidavit submitted by Bashir Ahmad one of the respondents.
2. Learned counsel for the petitioner contends that non-appearance of the petitioner on 27-11-1993 was neither wilful nor intentional, but because of the reasons beyond his control. It is also vehemently argued that he (Khan Muhammad Younas Khan, Advocate) was to argue the case and Mr. Muhammad Munir Paracha, Advocate was only to attend the case on unimportant dates.
He also admits that he could not appear on 27-11-1993, because he could not reach Rawalpindi on the said date.
3. Mr. A.R. Shaukat, learned counsel for contesting respondents submits that writ petition was filed by Mr. Muhammad Munir Paracha, Advocate of Rawalpindi, who has appeared on all the dates of hearing in the writ petition and Khan Muhammad Younas Khan, Advocate had appeared only on 5- 10-1991. There is nothing on the record to show that Mr. Muhammad Munir Paracha, Advocate was only to attend the case on unimportant dates and the principal counsel was Khan Muhammad Younas Khan. He also submits that the present application has also been filed through Mr. Muhammad Munir Paracha, Advocate and has been signed by him on 18-12-1993, which has not been supported by his affidavit. In any case learned counsel for the respondents submits that no justification has been shown for non-appearance of the petitioner on 27-11-1993 to pursue the writ petition.
4. I have heard the learned counsel for the parties and perused the record with their assistance.
The writ petition was filed by Mr. Muhammad Munir Paracha, Advocate and was fixed on 7-7-1991.
He himself appeared in this case. Subsequently, on 9-7-1991, 16-7-1991, 20-7-1991, 7-8-1991, 28-8- 1991 and 23-9-1991 he alone appeared in the writ petition. Khan Muhammad Younas Khan, Advocate first time appeared on 5-10-1991 alongwith Mr. Muhammad Munir Paracha, Advocate whereas Mr. A.R. Shaukat. Advocate has appeared for respondents 3 to 6 on the said date. The case was, thereafter, taken up on 9-12-1991. No one appeared for the parties and the case was adjourned. On 23-12-1992 petitioner appeared in person in C.M. No.1730/92 in which notice was issued for 25-1-1993. On 25-1-1993 Mr. Muhammad Munir Paracha, Advocate appeared. The case was again fixed on 8-2-1993 on which date neither Khan Muhammad Younas Khan, Advocate not: Mr. Muhammad Munir Paracha, Advocate appeared and instead Raja Abdul Ghafoor, Advocate was marked present for the petitioner and respondents 5 and 6 appeared in person. The case was taken up on 17-11-1993. No one appeared for the petitioner whereas counsel for respondents 3 to 6 appeared. Relevant art of the said order is reproduced as under:--- "Learned counsel for the petitioner had appeared in the morning and made a request that the case be taken up after interval as he is to appear before the Supreme Court at Islamabad. He has been awaited till now i.e. 1-40 p.m. But he has not entered appearance. .In the interest of justice, this petition is adjourned to 27-11-1993. It has been made clear that no further adjournment shall be allowed."
On 27-11-1993, no one appeared for the petitioner and counsel for respondents 3 to 6 attended the Court and vide detailed order the writ petition was dismissed. The case was called out repeatedly and a request was made by Raja Abdul Ghafoor, Advocate for further adjournment on behalf of Khan Muhammad Younas Khan, Advocate on the ground that he has not been able to reach Rawalpindi from Lahore. It was explained to the learned counsel that on the last date of hearing Mr. Munir Ahmad Piracha. Advocate had entered appearance in the early hours and requested that the case be kept pending as he was busy before the Supreme Court and would appear in the later hours of the day, but he did not turn up and the case was adjourned for today. In view of this Raja Abdul Ghafoor stated that he had no further instructions. The Court kept the case pending in order to enable Mr. Munir Ahmad Piracha, Advocate to enter appearance till 1-35 p.m. Because of non- appearance of the petitioner the writ petition was dismissed for the prosecution. The order sheet indicates that Muhammad Munir Paracha, Advocate was only counsel who has been appearing on all dates of hearing to pursue the writ petition and Khan Muhammad Younas Khan, Advocate appeared only on one date of hearing referred to above and Mr. Muhammad Munir Paracha, Advocate appearing alongwith him even on that date. The plea of petitioner that Khan Muhammad Younas Khan, Advocate was the principal counsel and Mr. Muhammad Munir Paracha, Advocate was only to look after the proceedings is not supported by the record. The writ petition was filed by Mr. Muhammad Munir Paracha, Advocate. His regular appearance in the writ petition and there being no such plea that principal counsel is Khan Muhammad Younas Khan, Advocate, I am led to believe that Mr. Muhammad Munir Paracha, Advocate was the counsel for petitioner for all intents and purposes without any reservation. Non-appearance of Mr. Muhammad Munir Paracha, in this Court on 17-11-1993 till 1-40 p.m. And again his non-appearance on 27-11-1993 till 1- 35 p.m. Clearly indicates that counsel was not diligent in pursuing the case.
5. The petitioner engaged two counsel namely, Mr. Muhammad Munir Paracha, Advocate and Khan Muhammad Younas Khan, Advocate. Khan Muhammad Younas Khan appeared only on one date of hearing and Mr. Muhammad Munir Paracha, Advocate of Rawalpindi has been appearing on almost all of the dates. Non-appearance of both the counsel and of the petitioner himself on 27-11- 1993 clearly disentitled them to the discretionary relief for restoration of the writ petition. Petitioner being negligent, petition for restoration cannot be accepted. It has been laid down in Rafiq Ahmad Khawaja v. Abdul Haleem 1982 SCM R 1229 that neither appellant nor his counsel appearing in Court when the case was adjourned in their presence, The counsel was found to be negligent and as such no relief for restoration of the matter is available to such a litigant. Order IX, Rule 9 of the C.P.C.
Provides:--- "9. Decree against plaintiff by default bars fresh suit.--(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
"The mere fact that a litigant has engaged a counsel to appear on his behalf does not absolve him of all responsibility. It was as much his duty as that of the learned counsel engaged by him to see that the appeal was properly and diligently prosecuted.
Similarly, in Lal Khan v. Gulab Khan 1982 CLC 1991 the contention that the appellant's counsel being busy in preparation of Run of Kutch case as such appeal dismissed due to his non-appearance be restored was repelled by holding that said reason itself did not furnish any justification. Counsel himself to make alternative arrangement or appellant himself to do so. The Division Bench of the Lahore High Court dismissed the appeal holding that there is nothing to show that the appellant prosecuted the appeal properly and diligently. Yet in another case reported in Rais Rahim Bakhsh v.
Ghansia Corporation and another 1983 CLC 312 counsel as well as petitioner was absent from the Court on the date of hearing-rule that suitor should not be penalized on account of negligence of his counsel. It was laid down that such a rule is not applicable. It was observed that if the counsel was unable to appear it was the duty of the petitioner to inform the Court and request for the adjournment. Such a course having been adopted, there is no justification to restore the writ petition. It was also observed in Zulfiqar A.I v. Lal Din and another 1974 SCM R 162 that mere engagement of counsel does not absolve litigant of all his responsibilities. Party as well as counsel both are bound to see that the appeal is properly and diligently prosecuted and the counsel engaged, if lacking in his sense of responsibility to Court, opposite-party cannot be made to suffer on that account.
1988 SCMR 112 it was observed that dismissal of writ petition for non-prosecution, the restoration thereby is discretion of the High Court and order refusing its restoration challenged was not set aside on the ground that cogent reasons having been given for dismissal and discretionary order of the High Court found not suffering from any illegality and leave to appeal was refused. In the latest judgment of the Division Bench of the Lahore High Court on this point cited by the learned counsel for the respondent reported in Sh. Muhammad Mubarak and 5 others v. Muhammad Iqbal and 11 others 1994 CLC 1708 it was held that the Court should generally be lenient in such matters and if the counsel for a party deliberately fails to enter appearance, there would hardly be any justification for restoring the case or condoning the delay in filing an application for readmission for which not only sufficient cause should be made out but also each and every delay needs be explained.
6. In the light of the judgments referred above, the conduct of the petitioner coupled with the flimsy pretext of engagement of Mr. Muhammad Munir Paracha, Advocate was only to attend the case on the dates of hearing but not to argue the case have not impressed me for restoration of the writ petition which was dismissed in default at 1-35 p.m. On 27-11-1993. This date was given only to afford the last opportunity of hearing to Mr. Muhammad Munir Paracha, Advocate who was aware of this date as the case on 17-11-1993 was adjourned and Mr. Muhammad Munir Paracha, Advocate appeared earlier in the morning hours in the said case and requested that it may be taken after interval on the said date. He never informed the Court that it was Khan Muhammad Younas Khan.
Advocate who was to argue the case and not himself. On that date also neither the petitioner nor his counsel appeared but in the interest of justice the case was adjourned for 27-11-1993 on which date again neither the petitioner nor any of his counsel appeared and the Court was constrained to dismiss the petition for non-prosecution. After the perusal of the order-sheets as indicated above coupled with the conduct of the petitioner, I am led to believe that the petitioner is prolonging the litigation on one pretext or the other. The petitioner was not diligent in pursuing the writ petition, and as such he is not entitled to the discretionary relief, of the restoration. The application has no substance, therefore, it is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.