1. ' The appellants have prayed through this application that this appeal, which was dismissed for non-prosecution on 9th December, 1999, be restored to its original position. The application is supported by an affidavit of the counsel for the appellant.
2. ' This application has been resisted by respondent No,1 whose Chief Manager has filed a counter- affidavit vehemently opposing the grant of this application.
3. ' Mr. Salim Salaam Ansari, counsel for respondent No,2, has furnished his affidavit wherein he has stated that he has no objection if the application for restoration is granted and the appeal is heard and decided on merits.
4. ' It is also pertinent to note that Mr. Mansoorul Arifin, counsel for the respondent No,1, has also furnished his affidavit to controvert the contentions of the appellant as well as the contentions of the counsel for the respondent No,2. The appellant has submitted his rejoinder affidavit.
5. ' Learned counsel for the appellant, in his arguments, has submitted that the matter was fixed in the month of November, 1999 and the same was adjourned to a date to be fixed by office. At later time, according to him, he visited the Roster Branch of this Court and noted 23rd December, 1999 in his case diary as the next date of hearing of this appeal. However, the matter was taken up on 9th December, 1999 and it was dismissed for non-prosecution. Learned counsel then appearing for the appellant learnt about the dismissal and moved the instant application. He has submitted a photo copy of his case diary to support his contention that the case was noted therein for 23rd December, 1999. He submits that the then learned counsel for the appellant has been making appearance in this appeal regularly and his non-appearance, so also of the appellant, on the said date was neither wilful nor intentional but due to the reason stated by him. He has placed reliance of the case of Municipal Committee, Rawalpindi v. Raja Muhammad Sarwar Khan (1968 SCM R 817) and Raza Ali v. Ahmed Saeed Khan (1983 CLC 1230). Learned counsel for respondent No,2 has also supported the prayer of the appellant and stated his no objection to the grant of the instant application.
6. ' Learned counsel for the respondent No,1 has vehemently opposed the prayer of the appellant. The first objection raised by him is regarding maintainability of this application. According to him in case of dismissal of the appeal, the same could only be readmitted by invoking Rule 9 of Order 41, C.P.C. Next, he submitted that this appeal was listed in the cause list issued for 9th December, 1999, which is deemed to be a constructive notice to learned counsel for the appellant and the appellant himself, therefore, absence for whatever reason stated by the learned counsel for the appellant cannot be condoned. To substantiate this plea, he has placed reliance on the case of Bundu Shah and others v. Wilayatullah (1985 SCM R 1305). Further, he submitted that in case, 23rd December, 1999 was noted as the next date of hearing by the counsel for the appellant in his case diary. How the instant application was moved earlier i,e,, on 18th December, 1999 and that no source has been disclosed as to how it dawned upon the appellant or his counsel that the appeal was dismissed on 9th December, 1999. As to no objection stated by the learned counsel for the respondent No,2, he stated that the appellant and the respondent No,2 were defendants, in the suit and have common interest.
7. Be that as it may, it is a universally accepted principle of the law that matters should be decided on merits and technicalities should always be overlooked to do justice to the parties. Following this golden principle, in the circumstances of the case, we allow this application, subject, however, to payment of cost in the sum of Rs,25,000 to the respondent No,1 within 15 days. On such payment, the appeal shall stand restored to its original position to be proceeded further accordingly to law.
8. ' CMA No,2050 of 1999 stands disposed of in the above terms.
THE END