2011 SCMR 1035 (PLP)

Laws Cited

Representation

• Clr. Mushtaq Ahmed, Senior Advocate Supreme Court and Gulzarin Kiyani, Senior Advocate Supreme Court for Respondents.
• ----O. XIX---Dismissal of appeal for non-prosecution-Application for restoration on the ground that appeals were filed by a Senior Advocate of Supreme Court, who when the notice for hearing of the case was given, was already a Judge of the Federal Shariat Court and appellant had no notice of the fixation of the case---Notices, in fact, were not only issued to the AOR for the appellants but also to the AOR for the respondents, however none appeared even for the respondents---Issue involved in the main appeals pertained to inheritance, Supreme Court allowed the applications and restored the appeals subject to payment of cost by the appellants to the tune of Rs.20,000.
• Kh. Saeeduz Zafar, Advocate Supreme Court for Applicants.
• 2. The afore-referred Civil Appeals in which the CMAs have been filed, were dismissed for non-prosecution vide the order dated 7-6-2006. The restoration of the appeals is sought mainly on the ground that the appeals were filed by Mr. Saeed-ur-Rehman Farrukh, learned Senior Advocate of this Court, who when the notice for hearing of the case was given, was already a Judge of the Federal Shariat Court and appellants had no notice of the fixation of the case. Learned counsel further adds that the notice issued by the office of this Court was addressed to Ch. Muhammad Akram, learned Advocate-on-Record and it basically required him to file application for bringing on record the legal heirs of the deceased respondents namely Hameed Elahi (respondent No.8 in CA 2103 of 2000 and respondent No. 7 in CA 2104 of 2000) and Zahooran Bibi (respondent No. 12 in CA 2103 of 2000 and respondent No. 9 in CA 2104 of 2000). Even if the legal heirs of the afore-mentioned deceased respondents had not been impleaded as party, the appeals could not be dismissed on that account. Learned counsel placed reliance on a judgment of this Court reported at Bashir Ahmad v. Muhammad Hussain (2010 SCMR 822).
• 3. Learned counsel for the respondents submitted that these applications are not tenable because the notice:: under the Supreme Court Rules are to be issued to the learned Advocate-on-Record which in the instant case was done, his name appeared in the cause list and despite that, none appeared which resulted in the obvious consequence i.e. dismissal of appeals. He further submitted that the applications are barred by more than 200 days and no explanation tenable in law has been given to justify condonation of delay.
• 4. Having heard learned counsel for the parties, we find that the notices issued to the parties to which reference has been made above, were issued not only to the Advocate-on-Record for the appellants but also to the learned Advocate-on-Record for the respondents Nos. 1 to 6, 9 to 11 and 13 to 14. However none appeared even for the respondents. That being so and in view of the fact that the issues involved in the main appeals pertain to issues of inheritance, we are inclined to allow these applications and restore the appeals subject to payment of cost by the appellants to the tune of Rs. 20,000. Since the parties are pitted against each other for the last more than tour decades, the office is directed to fix the main appeals within five months.

Headnotes / Summary

Judgment & Decree