2003 PLP 1836 (MLD)

3. I have heard the learned counsel for the petitioner at length and perused the record.

4. The revision petition (C.R. No.95 of 1995) was filed by the petitioner on 12-1-1995, which was fixed for hearing for 9-3-1995 on which date the learned counsel for the petitioner sought adjournment to prepare the case. Thereafter, it was fixed for 18-4-1995 on which date again adjournment was sought on the ground that the learned counsel for the petitioner was confined to bed. The said revision petition was, however, admitted for regular hearing on 15-5-1995. It was, fixed for hearing for 2-6-1997, but learned counsel for the respondents submitted power-of-attorney and sought adjournment. The case was again posted for 17-11-2000. The learned counsel for the petitioner noted the case for the said date but made the following endorsement on the summons:-- "Learned counsel for the petitioner is not feeling well and he cannot prepare the case"; Since the learned counsel for the petitioner had been served, but he deliberately decided not to prepare the case, therefore, the revision petition was dismissed for non-prosecution on 17-11-2000. An application (C.M. No.819 of 2000) was filed on 18-11-2000 for restoration of the civil revision. This Court without issuing any notice of the said C.M. No.819 of 2000) accepted the time-barred application and restored the revision petition to its original number vide order dated 22-12-2000. The case was once again fixed for hearing for 26-3-2001 on which date again adjournment on behalf of learned counsel, for the petitioner was sought, hence the same was adjourned. Same was the case when the revision petition was fixed for 18-5-2001, when the learned counsel for the petitioner again sought adjournment on the ground of his indisposition and the case had been adjourned. The case was again posted for 3-4-2002. The learned counsel for the petitioner once again sought for adjournment enabling him to prepare the case. Since the case had been pending since 1995 and had been adjourned a number of times on the request of the learned counsel for the petitioner, therefore, in the interest of justice it was again adjourned as a last chance with the direction that no further adjournment would be granted. When the case came up for hearing on 2-5-2002 request on behalf of the learned counsel for the parties was made for adjournment on the ground of indisposition of the learned counsel for the parties, hence the same was adjourned. The case was again posted for 28-6-2002. It was called several times. The learned counsel for the respondents was present, but neither the petitioner nor his counsel was in attendance, hence the revision petition was again dismissed for non-prosecution on the said date. The petitioner made the application in hand for restoration of the application (C.M. No.564 of 2002). Perusal of which shows that the same has been filed by the learned counsel which is also duly supported by his affidavit. It is worth mentioning that earlier applications were also submitted by the learned counsel for the petitioner and not by the petitioner himself. The perusal of this application shows that the petitioner has failed to mention as to what was the cause for his non-appearance firstly:-- When the revision petition was called for hearing and secondly when the application for restoration of the revision petition was called for hearing, only vague explanation for the absence of the learned counsel for the petitioner has been mentioned in the application, but this application was not supported by any cause list showing as to before which Court the learned counsel for the petitioner was appearing when the application was called for hearing. The requirement of Order 9 rule 9 is that a party applying for an order to set the dismissal aside has to satisfy the Court that there was sufficient cause for his non appearance. As mentioned above, neither any of the applications mentioned above, were filed by the petitioner himself not the same were duly supported by his affidavit, nor any reasons for his (petitioner's) absence was mentioned therein. All the applications were filed by the learned counsel for the petitioner and the petitioner even did not bother to sign the same what to speak of explaining the sufficient cause for his non-appearance. A party does not discharge his obligation to conduct the case or to defend it by engaging an advocate, but it owes a duty to the Court to ensure that the case is properly and diligently prosecuted or defended. Any negligence on the part of his advocate will be binding on him as held in Safiullah Siddiqui v. Karachi Electric Supply Corporation Ltd. (1987 SCMR 926). Similarly in the case of Zulfiqar Ali v. Lal Din and another (1974 SCMR 162) the august Supreme Court observed as follows:-- "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. If he engaged a counsel who was lacking in his sense of responsibility to the Court, it is he who should suffer and not the other side." In the case of Rafiq Ahmad Khawaja v. Abdul Haleem (1982 1229) the above view was re-affirmed by the august Supreme C Pakistan in the following words:-- "In the facts and circumstances of this case, we are not impressed with the contention that the appellant was under no obligation to pursue his case and that his case has gone by default entirely due to the negligence of his counsel." And again: "As pointed out earlier, the High Court on a thorough re examination of the explanation furnished by the appellant in support of his non-appearance, has come to the conclusion that the appellant himself was negligent in not keeping in touch with his counsel .... "

6. In the case of Sher Muhammad v. Said Muhammad Shah (1981 SCMR 212) it was held as under:-- "it was undoubtedly the duty of the petitioner's counsel to inform him, if not of the date of hearing at least of the result, namely, the dismissal of the revision petition, but the counsel failed to perform this duty, and the petitioner learned of the High Court's order only through a friend three months later. Even if these facts are accepted as correct, this would not constitute sufficient cause for the condonation of delay ......"

7. The question as to whether negligence of the counsel was not a sufficient cause for restoration of appeal nor for condonation of delay came up for hearing in Shah Wali v. Allah Bakhsh (1999 CLC 45) before the Lahore High Court, wherein it was held that negligence of the counsel is never considered to be sufficient cause for restoration of appeal nor for the condonation of delay in filing the petition for re admission. The obligation of the appellant to be vigilent for prosecution of the appeal after engaging a counsel does not absolve him from his duty to see that his appeal is properly and diligently prosecuted.

8. Since the revision petition except one date was adjourned on a the dates at the request of the learned counsel for the petitioner and due to the non-prosecution had been dismissed earlier too and restored in the interest of justice, it appears that the petitioner has no interest to prosecute his revision petition. Not only the respondents cannot be kept locked in the litigation for indefinite period due to lack of interest of the petitioner and negligence of his counsel, but this Court also could not move an inch further since 1995 till date except either adjourning the case on the request of the learned counsel or passing orders for its restoration. In the absence of any sufficient cause for non-appearance of the petitioner the application cannot be allowed. The judgment quoted by the learned counsel for the petitioner (PLD 1985 Peshawar 8) has no application to the case in hand because the said judgment proceeds on its facts. The net result is that the application in hand is dismissed in limine. M.H./903/P Application dismissed.