2005 PLP 2277 (YLR)

The appellant had approached this Court in this R.F.A. against the judgment and decree, dated 31-7-1995, whereby, suit for specific performance filed against him was decreed by the learned trial Court. This appeal was admitted to regular hearing vide order, dated 19-11-1995 but was dismissed for non-prosecution on 17-5-2001. Through this C.M., appellant seeks re-admission of the appeal on the ground that neither the learned counsel nor the appellant had any notice of fixation of the appeal on 17-5-2001 with a further averment that the learned counsel had not received the cause list for the said date and that the applicant and his counsel have a strong apprehension that the name of the counsel of the appellant did not appear in the cause list issued for 17-5-2001, otherwise the list should have been sent to the appellant's counsel in normal routine. It was further averred that the respondents filed an execution application on 21-10-2003 in which notice was issued to the applicant for 4-11-2003, he came to know of the dismissal of the appeal for non-prosecution on 12-11-2003. The application was filed on 24-11-2003 and is supported by the affidavits of the appellant as well as the learned counsel. C.M. 2-C of 2003

2. Through this application, delay in seeking re-admission of the appeal is sought to be condoned on the ground urged for re-admission of the appeal. This application is supported by the affidavit of the applicant/ appellant.

3. Both these applications are being seriously opposed by the respondent.

4. The learned counsel for the applicant has relied on the affidavit of the learned counsel and submits that there is no reason to dis-believe the said affidavit. Mr. Muhammad Saleem Shahnazi, Advocate, had also appeared in the case he showed to us his diary in which this appeal was not found entered. The submission was that had the cause list for the said case been supplied to the learned counsel this case would also have been entered in the diary.

5. On the other hand the learned counsel for the respondent rely on the cause list issued for the whole week in which along with two criminal matters, this appeal was also listed and the name of the learned counsel was duly printed. It is also being vehemently contended that Limitation under Article 168 of the Limitation Act, for re-admission of an appeal is 30 days from the date of dismissal of the appeal and as per appellant's own showing he came to know of the dismissal of the appeal on 12-11-2003. However, there is not a word of explanation for the delay from 12-11-2003 to 24-11-2003.

6. In support of his submissions he placed reliance on Ch. Muhammad Ali v. Haji Feroz Din (2003 CLC 1218), Government of the Punjab through Secretary Education, Civil Secretariat, Lahore v. Atta Ullah Quieshi and 2 others (1999 SCMR 2262). Ghulam Farid and 4 others v. Sultan (1985 MLD 1619) and Kamruddin Shalwani v. Ahmed Muneer Nanawatty (1993 MLD 1341).

7. The submissions made by the learned counsel for the parties have considered. The cause list, a copy of which has been placed at the record, clearly shows fixation of this appeal on 17-5-2001 in which the name of the learned counsel (Mr. Saleem Shanazi) was also correctly printed. We also found that apart from this appeal, two criminal cases were also listed before Single Bench of this Court on 17-5-2001. All the three aforesaid cases were on a single page of the list and in the diary of the learned counsel for the appellant showed to us in the Court, the two criminal cases were found entered. We have taken judicial notice of the fact that the computer lists are being provided to the learned counsel of their cases only unlike the pre computer list days, when a consolidated list of all cases fixed before this Court before all Benches used to be supplied. The apprehension expressed in this application that the name of the learned counsel was not printed in the cause list and, therefore, it was not supplied, is not correct. Had the list not been supplied to the learned counsel, there was no occasion for noting down the two criminal matters fixed on 17-5-2001 in his diary. The affidavits filed by the appellant and his learned counsel have been controverted by a counter-affidavit.

8. In the case of Ch. Muhammad Ali, supra, this Court, while dismissing the application for re-admission of the appeal, observed that there was a presumption as to C the supply of cause list to the learned counsel and when an application is made beyond the time prescribed for seeking re-admission of an appeal each days delay has to be explained. There is no explanation c whatsoever of the delay that occasioned from 12-11-2003 and 24-11-2003.

9. We are, therefore, not satisfied that sufficient cause has been shown for re-admission of the appeal or for condonation of the delay, accordingly, both these applications are dismissed. M.I./M-652/L????????????????????????????????????????????????????????????????????????? Applications dismissed.