P L D 1997 Karachi 397 (PLP)

In these revisions a short point is involved. The applicants had preferred appeals referred to in the above revisions which were dismissed for non-prosecution by the learned IIIrd Additional District Judge, Karachi East (Mrs. Akhtar A. Chaudhry) on 23-5-1996. He thereupon submitted applications under Order 41, Rule 19, C.P.C. in each matter on the same day supported by his affidavit -as well as the affidavit of his learned counsel disclosing circumstances which prevented them to appear before the Court at the time when the appeals were called and dismissed. The learned Appellate Court passed the following order on each application: "By consent, application allowed as prayed with cost of Rs.100. The C.M.A. stands restored to its original position." These revisions are preferred against the imposition of cost by the learned Appellate Court and the same were admitted to examine the legality and propriety of the impugned order. I have heard learned counsel for the parties at length and have perused the record. Learned counsel for the applicant vehemently urged that the appeals were dismissed for non-prosecution by the learned Appellate Court in the early hours of the day at 9-00 a.m. which is not warranted by law. He further submitted that it is wrongly mentioned that consent was given by the other side for -restoration of the appeal. Lastly he submitted that the learned Appellate Court failed to appreciate that the absence of the applicant or his counsel was not deliberate or wilful and even at the time where the appeals were dismissed the respondents were also not present. Therefore in these circumstances they were not entitled to cost. In support of his submission learned counsel cited Choudhry Nasirudin and others v. Mueenuddin and others PLD 1980 Lah.

417. In this judgment suit was dismissed in default of appearance of the learned counsel when he was busy before another Court. At that time the defendant was also not present. Application for restoration was immediately submitted on the same day and it was held by a learned D.B. that there was no willful default in appearance by the counsel therefore, the dismissal order was set aside and the suit was restored. In Ghulam Muhamma v. Altaf Hussain 1981 SCMR 533 it was held by the Hon'ble Supreme Court that the suit could not have been dismissed in the early hours of the day. In Hassan Abid v. Habibullah and another 1982 CLC Karachi 172 it was held by a learned Single Judge of this Court as follows:-- "A matter should not be dismissed in the early hours of the day. It is just and proper that the matters unless specifically fixed by an order to be heard early in the morning should not be dismissed immediately after calling up in early hours. This, however, does not mean that the parties and, their advocate, are absolved from the duty to attend the Court in early hours. It will be in the facts and circumstances of each case and according to the work available to the Court which may exercise its discretion judiciously to decide whether a matter can be dismissed in the early hours. However, hasty orders dismissing the suit or granting ex pane decree in early hours should be avoided as far as possibly." Viewed from the point of view of administration of justice it will be salutary practice on the part of Courts to abstain from passing adverse order in absence of a party or his counsel in the early hours of the day but it does not imply that a party or his advocate should become oblivious of his duty to attend the case when the Court sitting starts. He cannot take the Court for granted and / leave his appearance to his own convenience. The parties should attend the Court well within time or at least send some intimation so that the Court concerned could make necessary adjustment. Since the order of dismissal was set aside with the consent of the respondent, the learned Appellate Court did not examine merits of the applicant's plea for restoration of his appeals. In view of the consent given by the respondent he was not entitled to the grant of cost which was awarded for his benefit. In the circumstances of the case there was no valid A basis to award cost and therefore I allow these Revision Applications and set aside the impugned orders dated 23-5-1996 passed by the learned Appellate Court only to the extent of awarding cost of Rs.100 to the respondent. A. A./S-74/K Revision accepted.