1999 PLP 2429 (MLD)

3. Regular Second Appeal was filed to challenge the judgments of the two Courts below which was allowed on 27-5-1989 and case remanded to the learned trial Court.

4. In the second post-remand proceedings, the learned Civil Judge dismissed the suit vide judgment, dated 12-9-1989. The appellant filed an appeal, which was dismissed for non-prosecution on 17-2-1991.

5. An application under Order 41 Rule 19 of C.P.C., was filed, by the appellant, seeking restoration of appeal which was dismissed by the learned Additional District Judge, vide order, dated 11-I 1-1992.

6. In this appeal, order, dated 11-11-1992, dismissing application for restoration of appeal has been called in question.

7. Learned counsel for the appellant submitted, that the appeal was dismissed for non-prosecution on 7-12-1991, application for its restoration was filed on 8-12-1991, on the ground, that the date was inadvertently, noted on 8-12-1991, which application was supported by affidavit of the learned counsel and also copy of the brief, as well as 'diary' but the learned Additional District Judge, illegally, excluded from consideration, the affidavit of the counsel and the ground raised in the application. He further submitted, that the power of attorney was fraudulently removed from the record but in any case, the respondent had not taken the plea that the counsel, who filed the affidavit, was not engaged in appeal and, therefore, the learned Additional District Judge, could not proceed on assumptions or on a plea not arising from the record.

8. Conversely, learned counsel for the respondents, argued, that there were three counsel in the case and even if, one had committed some mistake, the other two should have been vigilant. He further submitted, that the power of attorney of the counsel being missing from the file his affidavit was rightly ignored by the learned appellate Court.

9. After hearing learned counsel for the parties and giving due consideration to the submissions made, in the light of the material existing on the record, it is observed, that for the reasons hereafter, the impugned order cannot sustain.

10. The appeal in this case was dismissed for non-prosecution on 7-12-1991 while the application for its restoration was filed on the very next day, on the ground that the date was inadvertently, noted as 8-12-1991. There was no delay to the filing of the application and quick action, was evidence of the bona fide of the appellant. The application was supported by the affidavit of an Advocate and also the affidavit of the party. Copies of the brief and diary, supporting the plea was annexed, which was prima facie indicative of 'the fact, that the date was inadvertently noted as 8-12-1991. In the first instance, there was no justification, for ignoring the affidavit of the counsel, on the ground, that his power of attorney was missing from the file, for the reason, that in paragraph No.4 of the reply to the application, the respondent had admitted that the appellant had three counsels, one from Lahore. It was never the case of respondents, in the reply that the counsel who had sworn affidavit in support of the application was not engaged in the case or was not a counsel of the appellant. This being so, the plea being absent, the learned Additional District Judge, could not ignore the affidavit of the counsel, on a place which had not been raised in the reply. Be that as it may, the affidavit of the party was there which has not been considered by the learned Additional District Judge.

11. In the matter of restoration of cases, generous consideration has to be given. Law always favour adjudication on merits, rather than non-suiting the parties on technicalities. Wrong noting of the date, has always been considered, to be a good ground for restoration of the suit/appeal. Reference can be made on 1968 SCMR 817.

12. It is also observed, that the learned Additional District Judge, did not frame any issue nor recorded any evidence, to determine the sufficiency or otherwise of the cause for restoration of the appeal.

13. Be that as it may, the ground which prevailed with the learned Additional District Judge, does not arise from the pleading, hence, the conclusion drawn by him cannot sustain.

14. For the reasons above, this appeal is allowed, the impugned order is set aside, with the result, that application for restoration of appeal, filed by the appellant, is allowed and the appeal of the appellant is restored.

15. The case is accordingly remanded, to the learned Additional District Judge, who shall decide the appeal of the appellant, afresh, on merits, and accordance with law. No order as to the costs. Q.M.H./B-45/L??????????????????????????????????????????????????????????????????????????????????? Appeal restored.