1995 PLP 590 (PLC)

‑‑‑‑Ss. 37 & 38‑‑Appeal‑‑‑Dismissal in default‑‑‑Application for re admission‑‑‑Counsel busy in High Court‑‑‑Appeal kept pending till late hours of date to wait for counsel‑‑‑Appellant also not present when case was called and alleged to have gone to bring counsel‑‑‑Counsel, in circumstances, held, guilty of gross negligence for not appearing up to closing time of Court‑‑‑Court could not be expected to go on waiting till closing of time and then instead of dismissing appeal for default to adjourn it‑‑‑Application for re‑admission dismissed. MA. Khadim for Petitioner. Javed Altaf for Respondent. Date of hearing: 11th August, 1986. This is an application for re‑admission of the appeal. The appeal was dismissed for default on 23‑4‑1986 when neither the appellant nor his counsel had empowered till the closing time of the Court. The grounds for non‑appearance, as given in the application, are that the learned counsel for the petitioner was appearing before the High Court and had instructed the petitioner to inform him when the case was likely to reach, that the petitioner left the Court premises to call the counsel but when he came back he learnt that the appeal had been dismissed for want of prosecution. The application is supported by an affidavit, which has been controverted by the counter‑affidavit of a representative of the respondent. It is contended in the reply to the application and the affidavit that the petitioner was not present in the Court before it was called, nor he was in attendance after the case was called. It is also contended that the appeal was kept pending till late hours of the day in order to await the counsel for the petitioner, but nobody appeared. The order, whereby the appeal was dismissed in default, clearly shows that the appellant/petitioner and his counsel were awaited till the closing time of the Court, but nobody appeared. The application for readmission of the appeal was brought on 12‑5‑1986. If the petitioner had attended the Court on the same day after the appeal had been dismissed in default, he would have made the application for readmission of the appeal on the same date. In the petition and, the affidavit it is not mentioned that the petitioner had come back alongwith counsel after the case had been dismissed in default. So this is not the case of the petitioner that his counsel had attended. This assertion is also wrong that before the appeal was called, the petitioner had remained present in the Court premises, because if it would have been so, he would have appeared when the case was called in the early hours of the day. It is thus clear that neither the petitioner nor his counsel appeared throughout the day. The learned counsel for the petitioner may be busy in the High Court but he was guilty of gross‑negligence for not appearing up to the closing time of this Court. It cannot be expected from any Court that it would go on waiting till the closing time of the Court and then instead of dismissing the case for default, would adjourn it. There appears to be absolutely no ground for readmission of the appeal. The application, therefore, is dismissed. A.E./159/Lb.P Application dismissed.