' Appellant's appeal was dismissed in default on 2-12-1974. An application for its restoration was filed on the next day with the plea that the clerk of the counsel of the appellant was present in the Court when the case was called and he went to fetch the appellant. When he later came the case was not taken up due to lunch time. The appellant came to the Court later. However, when his counsel came he was told that the case has been dismissed for default. The application for restoration was considered by the learned Additional District Judge who dismissed the same on 14-3-1975 on the ground that the application was not signed by the appellant nor his affidavit was attached and instead the affidavit attached was that of the clerk of the counsel. The appellant has filed this first appeal against this order.
2. Learned counsel for the appellant has contended that the case was fixed on 2-12-1974 not for hearing but for publication of notice to the respondents. The notice had even not been published as there is nothing on the record to show that in the absence of the appellant, the appeal could not have been dismissed. In any case, the learned counsel submits that the explanation has been furnished before the lower appellate Court giving details of the appearance of the appellant and the clerk of the counsel which averments could not have been made if those were not true. In these circumstances, the appeal should have been restored and heard on merits.
3. Learned counsel for the respondent has submitted that the appellant himself should have signed the affidavit to the facts stated in the application. It is, secondly, contended that the appellant is not entitled to a stay which he has been seeking in his appeal before the lower appellate Court, until the arrears were deposited. Reliance is placed on Noor Muhammad v. The Province of West Pakistan (I).
4. Whether the appellant was entitled to an order of stay or not is a matter for the lower appellate Court to determine. In the circumstances stated in the restoration application supported by an affidavit which have not been controverted and especially when the case was not fixed for regular hearing, the learned lower Appellate Court should have allowed the restoration and disposed of the appeal on merits. The order of the learned lower Appellate Court is therefore, set aside. The case is remitted to the learned District Judge, Multan for hearing the appeal between the parties afresh after notice to all concerned. In the circumstances, there shall be no order as to costs. The record of the lower appellate Court be sent back immediately to the learned District Judge, Multan. . Case remanded.
(1) PLD 1966 B J 19