'Civil Appeal No,125 of 1997 filed by Zahoor Ahmad against Muhammad Anwar Butt respondent and CDA was dismissed on 25-9-2000. Mr. M.A. Zaidi, learned Advocate-on-Record for Muhammad Anwar Butt respondent filed a Bill of Cost in the Office alongwith the necessary vouchers and the receipt supporting the claim for a sum of Rs,8,14,716. After hearing the parties on the claim. Mr. Budha Khan, Deputy Taxation Officer, taxed the bill on 27-1-2001 for Rs,8,275. Mr. M.A. Zaidi, learned Advocate-on-Record filed Review Application No,1 of 2001 against the order of the Deputy Taxation Officer dated 27-1-2001 pleading that the Deputy Taxation Officer has not allowed the actual cost/fee received by his counsel Mr. Abdul Shakoor Peracha, Mr. Abdul Karim Khan Kundi, learned Advocate Supreme Court and Mr. M.A. Zaidi, learned Advocate-on-Record. This review petition was heard by the Deputy Taxation Officer on 24-4-2001 and the following order of its dismissal was passed:-- ' "Mr. M.A. Zaidi, Advocate-on-Record for the applicant did not appear on the last date of hearing.
Despite issuance of another notice for appearance today he again did not appear. The Review application which is otherwise barred by time does not merit reconsideration. The taxation already done in the case is, therefore, confirmed and the review application is rejected."
2. Mr.M.A. Zaidi, learned Advocate-on-Record feeling aggrieved, filed Civil Miscellaneous Appeal
(CMA) under Order XXVIII, rules 32 and 47 of the Supreme Court Rules, 1980 against the order of the Deputy Taxation Officer passed in Review Application No,1 of 2001 pleading that the above order may be set aside and the costs claimed by the appellant may be allowed in the interest of justice.
3. The titled miscellaneous civil appeal was dismissed on two-fold grounds, firstly that the Deputy Taxation Officer had dismissed the review petition as barred by time without disposing of the application for condonation of delay and secondly that non-appearance of Mr. M.A. Zaidi, Advocate-on-Record was also not intentional as, according to him, on the first date of hearing the learned counsel for the rival party being not in attendance before the D.T.O. Was adjourned to another date. On the adjourned hearing the appellant and Mr. M.A. Zaidi, Advocate-on-Record were present till the closing of the office hours and had to leave the office after 3-00 p.m. On 24-4- 2001, but later on the same afternoon, it appears, the appeal was taken up after office hours and was dismissed for non-prosecution as well as for being barred by limitation.
4. After hearing the learned counsel for the respondent and Deputy Taxation Officer in person, the following points emerged for my address in this appeal:--
(i) Whether the respondent (appellant herein) is entitled to the counsel fee for which he had filed a receipt amounting to Rs . 50,000?
(ii) Whether the respondent had filed the photostat copy of the receipt evidencing the charge of the fee by the counsel and the learned Advocate-on-Record? If so, its effect?
(iii) Whether the review petition giving rise to the C.M.A. Appeal was barred by time, if so, its effect?
(iv) Whether the impugned ex parte order passed by the Deputy Registrar was on account of the negligence of the learned Advocateon-Record for the appellant? If so, its effect?
5. Mr. Akhtar Ali, learned Advocate-on-Record for the respondent judgment-debtor has opposed the claim as aforesaid of the appellant herein and reiterated the two grounds on the strength whereof the Review Application had been dismissed under Order XXVIII, rule 35 of the Supreme Court Rules, 1980. The learned Advocate-on-Record further contended that the review petition giving rise to the disputed claim of counsel fee was barred by time and, therefore, the learned counsel could not claim any counsel-fee in the appeal. He further argued that unless it was held that the absence of the learned Advocate-on-Record for the appellant herein was not wilful and that the application for condonation of delay was not allowed, this appeal would not be competent. Reference has been made to rule 32 of Order XXVIII of the Supreme Court Rules, 1980.
' As against this, Mr. Abdul Karim Khan Kundi, learned Advocate Supreme Court referred to paragraphs 5, 6, 7, 8, 9, 10 and 11 of the titled C.M.A., wherein it has been averred that non- appearance of the learned Advocate-on-Record was not intentional as on the first date of hearing the counsel for the opposite-party was not present and the case had to be adjourned to the another date; that the Deputy Taxation Officer was not available on the next date of hearing and the appellant and his Advocate-on-Record were present. They left the Office at about 3-00 p.m. On 24-4-2001 but later on it transpired that the review petition was taken up obviously after office hours when no one was in attendance. According to the learned Advocate Supreme Court, the dismissal of the review petition was thus without lawful authority; that the appellant had obtained the certificate from his counsel amounting to Rs,50,000 which had been paid as the fee to conduct his case whereas the office had awarded only Rs,400 as counsel-fee which was not proper and, just, and lastly, that Mr. Adbul Shakoor Peracha was paid a fee of Rs,35,000 but Rs,400 had been allowed without any justification which, was in clear violation of rule 1 of Orders XXXI and XXXII of the Supreme Court Rules, 1980.
6. The averments made in para. 5 ante by the appellant have been substantiated by an affidavit which prima facie are well-founded. The assertion of the appellant that on 24-4-2000, the Deputy Taxation Officer was not available whereas the appellant and his learned Advocate-on-Record were in attendance and that they left the Office at about 3-00 p.m. Remained unrebutted. It is asserted that the review petition was taken up obviously after office hours when nobody was in attendance. I am, therefore, of the view that dismissal of the review petition was not warranted. The ex parte proceedings taken against the appellant are accordingly set aside. On the same premise, the bar of limitation was also not established, and in any case, the delay if any, is condoned. In this context, it may be observed that in the proceedings for grant of costs, the rules should not be construed strictly and on that score the condonation of delay too is justified.
7. The photocopy of the Fee Certificate was furnished to the office by Mr. Abdul Karim Khan Kundi, learned Advocate Supreme Court alongwith the application whereas no such certificate was provided insofar as Mr. Abdul Shakoor Peracha, learned Advocate Supreme Court was concerned.
The impugned order of the Deputy Taxation Officer is, therefore, set aside and the claim qua Mr. Abdul Shakoor Peracha, learned Advocate Supreme Court amounting to. Rs,35,000 is, therefore, disallowed whereas the claim of Mr. Abdul Karim Khan Kundi, learned Advocate Supreme Court and that of Mr. M.A. Zaidi is allowed.
' This C.M.A. Is accordingly disposed of.