' BASHARAT AHMAD SHAIKH, J.---Appellant Novelty Enterprises Limited filed Writ Petition No,77 of 1997 in the High Court on 28th June, 1997. Its title was "Novelty Enterprises v. Collector Central Excise and Sales Tax and others". On 10th July, 1998 a Division Bench of the High Court passed an order dismissing the writ petition as withdrawn. Novelty Enterprises has filed this appeal to challenge the aforesaid order.
2. Before adverting to the grounds raised in support of this appeal, it will be useful to reproduce the order:--- "HIGH COURT OF JUDICATURE OF AJ&K Writ Petition No,77 of 1997.
Date of institution. 28-6-1998.
Date of decision. 10-7-1998.
' Novelty Enterprises Petitioner v. Collector Central Excise and Sales Tax and others Respondents.
' WRIT PETITION ' Before Justice Khawaja Muhammad Saeed, CJ. Justice Ch. Muhammad Riaz Akhtar, J.
' Present: ' Ch. Muhammad Azam Khan, Advocate for the Petitioner.
M/s. Mian Umar Mahmood Kasoori, and Ch. Muhammad Afzal Khan, Advocates for the Respondents.
' The learned counsel for the petitioner states that he has been instructed by his client not to press this petition. It may, therefore, be dismissed.
' In view of above, this writ petition stands dismissed as withdrawn. ANNOUNCED Camp Mirpur.
10-7-1998. CHIEF JUSTICE JUDGE"
3. The case of the appellant Company is that Writ Petition No,77 of 1997 was not fixed for hearing on 10th July, 1998 when the order was recorded and that Ch. Muhammad Azam Khan, the learned counsel for Novelty Enterprises, about whom it is stated in the order reproduced above that he appeared before the Court in fact was not present before the Court and did not make the statement that he had been instructed by his client not to press this petition. It is also stated that the appellant did not instruct Ch. Muhammad Azam Khan not to press the petition.
4. The appellant Company has filed an affidavit sworn by Ch. Muhammad Azam Khan Advocate in which it is stated that Writ Petition No,77 of 1997 titled "Novelty Enterprises Limited v. Collector Central Excise and Sales Tax and another" was not fixed for hearing on 10th July, 1998. He also stated that he did not appear in the case on the said date. This affidavit has not been controverted by the respondents.
5. In order to find out whether Writ Petition No,77 of 1997 was fixed for hearing on 10th July, 1998, we have perused the High Court file. The file shows that Writ Petition No,77 of 1997 was filed by Novelty Enterprises on 28th June, 1997. It was posted for preliminary hearing on 28th June, 1997 before a learned Single Judge of the High Court. Raja Muhammad Anwar Khan, Senior Advocate from Lahore, argued the case on behalf of the Novelty Enterprises and he was assisted by Ch. Muhammad Azam Khan. The writ petition was admitted to regular hearing. The learned Single Judge ordered that the written statement may be filed by the respondents before 20th July and the case shall come up for final arguments along with Writ Petition No,40 of 1997 on 24th July. On 24th July the case was adjourned to 5th August and then to 16th September and 13th October, 1997.
Thereafter, many adjournments were granted. The order of 28th March, 1998 was as follows: "To come up along with original file on 30-3-1998:" On 30th March no order was recorded nor any new date was fixed. With the result that the file became dormant till 10th July, 1998 when the learned Judges recorded the order which has been challenged in this appeal. It is, therefore, proved that assertion of the appellant and affidavit of Ch. Muhammad Azam Khan that Writ Petition No,77 of 1997 was not fixed for hearing on 10th July stand fully proved.
7. It will not be out of place here to mention that Writ Petition No,40 of 997 (mentioned in interim order of 28th June) was filed on 20th April, 1997 and its title was "Novelty Enterprises v. Assistant Collector Taxation and Excise". Another writ petition filed by the same party being Writ Petition No,48 of 1997 titled "Novelty Enterprises v. Assistant Collector Taxation and Excise" was also pending in the High Court when Writ Petition No,77 of 1997 was admitted to regular hearing. Yet another writ petition filed by the same party being Writ Petition No,39 of 1997 titled "Novelty Enterprises v.
Assistant Collector Taxation and Excise" was pending in the High Court at that stage of time. All the above noted writ petitions except Writ Petition No,77 of 1997 were dismissed on 11th July, 1998.
7. Faced with an extraordinary, if not unique, situation we decided that the learned counsel for the respondents in the High Court may be asked to file their affidavits to state whether they appeared in the above noted case and whether in their presence Ch. Muhammad Azam Khan made the statement attributed to him. As already seen, Mr. Umar Mahmood Kasuri, Advocate Lahore and Ch. Muhammad Afzal, Advocate Mirpur are shown to be present in the order under appeal. In response to the direction of this Court Mr. Umar Mahmood Kasuri has not filed an affidavit but Ch. Muhammad Afzal Khan has filed an affidavit in which he has stated that the case under reference was not fixed on 10th July, 1998 and that he did not attend the Court on 10th July before the Division Bench consisting of .Mr. Justice Khawaja Muhammad Saeed, CJ. And Mr. Justice Muhammad Riaz Akhtar Chaudhry. The affidavit goes on to state that for the reason stated above he was not in a position to confirm or contradict that Ch. Muhammad Azam Khan made a statement before the High Court on 10th July, 1998. Ch. Muhammad Afzal Khan has also filed in the Court photo copies of his professional diary relating to 10th July, 1998 which does not show that the case under reference was fixed for hearing on 10th July, 1998.
8. It is clear from the material available on the file that the order under appeal is not in consonance with actual facts. It is clear that Writ Petition No,77 of 1997 was not fixed for hearing on 10th July, 1998 and the statement attributed to Ch. Muhammad Azam Khan was not made by him. It is not for this Court to find out the circumstances in which this unfortunate situation arose but we are clear in our minds that the order is unsustainable.
9. We, therefore, accept the appeal and set aside the order recorded by the High Court on 10th July, 1998. The writ petition shall be deemed to be pending in the High Court and will be disposed of in accordance with law.