1983 PLP 1093 (PLC(CS))

Laws Cited

Representation

• ‑‑‑Ss. 25‑A & 37 read with Civil Procedure Code (V of 1908), O. IX, r. 8 & O. XVII, r. 2‑‑Grievance petition before Labour Court‑Dismissal for default of petitioner.‑Restoration application -Petitioner having closed his side neither sending any information to Court nor to his counsel about his alleged illness and remaining absent on date of hearing‑Photo copy of undated medical certi ficate not indicating Patient Register number‑Such certificate, held, rightly treated as doubtful and order of Labour Court dismissing application for restoration of petition, in circumstances, upheld by Labour Appellate Tribunal. .
• J. V. Gardner for Appellant.
• Kazi Muhammad Yasin for Respondent.
• Date of hearing : 1st February, 1983.
• 2. Learned counsel for the appellant has argued that since the appellant had about a year ago closed the case and the respondents were taking adjournments, the case should have been decided under Order XVII, rule 3 of the Code of Civil Procedure and that rule 2 was not attracted. Order XVII applies where both the parties are present and the party to whom time has been allowed to produce evidence has failed to do so, The impugned order does not show that the respondent had not brought evidence. Moreover, as none had appeared for the appellant, the case could not be decided on merits but under rule 2 the petition was to be dismissed in default. Law Notes (N.U.C.) 1 S C cited by the learned counsel for the appellant is not applicable to this case because the appellant had before the lower Court already closed his case and the case had been adjourned for the evidence of the respondents. So the respondents could not be punished by the pronouncement of judgment for the reason that the appellant had not appeared, The case from which the authority arose was an appeal and only arguments were to be heard. It was, there fore, held that instead of dismissing the appeal for the non‑prosecution, it should have been decided on merits after hearing the arguments of the party who was present. If the respondents had on the said day closed their evidence and‑ had been willing to argue the case, of course, it could have been possible for the learned lower Court to decide the case on merits. Learned counsel has cited P L D 1966 S C 461 and P L D 1960 S C 467 also but they are distinguishable from the facts of the present case. In the latter ruling it was found that the counsel had been making genuine efforts, to appear but failed on account of remaining busy in another Court. In the former ruling the counsel had reached late on account of remaining busy in the High Court. It. is manifest from the facts of the present case that they are different from the cases from which the authorities cited by the learned counsel arose. The other ruling is P L D 1965 S C 669. The date on which the case was dismissed was listed as an Eid Holiday but due to the non‑appearance of the crescent the Court had remained open. The counsel had gone abroad for the treatment of his eyes and another lawyer had appeared and sought permission to file his power‑of‑attorney. The case was restored. The Supreme Court in view of the circumstances of the case refused to interfere. In the present case the appellant was at fault for neither sending any intimation to the Court, nor to his counsel Mr. Gardner. The medical certificate does not appear to be a true certificate, inasmuch as the doctor had not dated it. In genuine cases patients go to the doctors not for getting certificates but primarily to get treatment. For future reference the doctors enter his name in the patient register, record the diagnosis and the medicines prescribed by him. This is done because daily many new and old patients come and the doctor is not expected to remember by faces the patients, the disease and the treatment proposed by him. If certificate is issued to such a patient, number of the patient register is given on it. Of course if no treatment is given, then the name is not entered in the register. Since no patient register number is given, it is evident that no treatment was given to the appellant. The correctness of the certificate, therefore, is doubtful. On the previous date Mr. Ghulam Qadir Cheema, Advocate was present and he knew the next date but there is no reason why he did not appear and why did not inform the other counsel namely Mr. Gardner about the date ? In these circumstances it cannot be said that the impugned order of the learned lower Court is unjustified.

Headnotes / Summary

Judgment & Decree