1992 PLP 961 (CLC)

(c) Discretion‑‑‑ ‑‑‑‑Discretion vested in the Court has to be exercised judicially and not arbitrarily. M. Aslam Riaz forAppellant Mohammad Aslam Khan for Respondent. Date of hearing: 21st December, 1991. This appeal is directed against the order dated 3‑9‑1988 passed by the learned Additional District Judge, Sargodha, whereby application moved by the appellant for re‑admission of the appeal dismissed in default on 21‑5‑1988 has been rejected.

2. The appeal of the appellant before the learned lower appellate Court was fixed on 21‑5‑1988. It was ‑ dismissed for non‑prosecution on the said date at 12.05 p.m. The first call in the appeal was made at 10.00 A.M. as is evident from the certified copies of the order‑sheet placed on the record.

3. The appellant moved application on the same day. It was explained in the application that the appellant had to come from Chak Jhumra and he could not come on the said date on account of illness and his learned counsel was busy before some other Court. The learned lower appellate Court held that the medical certificate appended by the appellant with the application was incorrect as no date was mentioned on it regarding its issuance. He also took the view that if the appellant had informed his counsel about his illness on Telephone the same should have been written in the application. For the above reasons it was held that no sufficient reason was explained by the appellant and his learned counsel for their non‑appearance on the date when the appeal was dismissed for non‑prosecution.

4. The law favours adjudication of cases on merits rather than their dismissal on technical grounds. Learned counsel for the appellant was busy in some other. Court and he could not appear when the case was called by the Court. The proof of the fact was that he promptly made application for restoration of the appeal on the same day after few minutes after coming to know that the appeal had been dismissed for non‑prosecution when he , subsequently appeared before the Court. The order passed by the learned lower appellate Court impugned in this appeal is arbitrary. Law requires that where a discretion is vested in the Court the same has to be exercised judicially and not arbitrarily.

5. The appeal is accepted. The impugned order dated 3‑9‑1988 dismissing the appellant's application for re‑admission of appeal is set aside and the said application is accepted. The appeal filed by the appellant before the learned lower appellate Court is re‑admitted which shall be disposed of in accordance with law on merits. There will be no order as to costs. AA./M‑183/L????????????????????????????????????????????????????????????????????????? Appeal accepted.