2000SCMR236 (PLP)

IRSHAD HASAN KHAN, ACTG. CJ.

This petition for leave to appeal under Article 185(3) of the Constitution of the Islamic Republic of Pakistan is directed against the order dated 8-7-1999 of the Lahore High Court, Lahore, in C.M. No. 1758 of 1998 in Intra-Court Appeal No. 123 of 1989 filed in Writ Petition No.206-R of 1986, whereby the Intra-Court Appeal dismissed for non-prosecution on 16-12-1998, was re-admitted.

2. It is pleaded that Intra-Court Appeal No. 123 of 1989 was listed for hearing on 16-12-1998 before a Division Bench of the Lahore High Court. The I.C.A. was dismissed for non-prosecution as neither the counsel nor the appellant appeared when the case was called. The appellant therein applied for readmission of the I.C.A. on the ground that at the relevant time the counsel for the appellant was appearing in a part heard matter before another Full Bench and had instructed his colleague to appear before the Bench hearing the I.C.A., but unfortunately he reached a little late. It was also stated in the application for restoration that a large number of cases pertaining to foreign currency were being heard by the Full Bench which was functioning day to day and he was under the bona fide impression that the case could be taken on 16-12-1998 and therefore, he remained present in that Court, but the Full Bench did not function. In consequence, the learned Judges of the Intra-Court Bench after hearing the parties accepted the application and readmitted the I.C.A. to its original number. The petitioner who was respondent No.3 in the I.C.A. now seeks leave to appeal.

3. Mr. Abdul Aziz Qureshi, learned counsel for the petitioner argues that the ground pleaded in relation to the non-appearance of the learned counsel for the appellant before the High Court was not available, inasmuch as, the learned counsel for the appellant failed to satisfy with particularly the description of the Full Bench as well as .the number of cases allegedly fixed therein. He submits that on verification it was found that neither any case was listed nor any Full Bench was constituted as alleged.

4. We are afraid, there is no material on record to show that the findings recorded by the High Court are incorrect. The interference drawn by the learned Judges of the Division Bench from the facts stated in the application for restoration and reiterated at the time of arguments relating to the circumstances which prevented the learned counsel for the appellant to appear before the High Court when the case was called out for hearing, is irresistible. It appears that the learned Division Bench was satisfied that the absence of the appellant was bona fide. The possibility cannot be ruled out that the learned counsel for the appellant before the High Court was under a bona fide impression regarding the fixation of cases before the Full Bench. The plea taken by the petitioner that the particulars of the Full Bench and the list of cases fixed therein was not stated with particularity is not material when the High Court was convinced as is apparent from the tenor of the order that the learned counsel for the appellant was prevented from appearance before the I.C.A. Bench on account of misunderstanding. There is nothing on record to show that the said statement was ex facie wrong. Thus, visualized, .the ground urged by the learned counsel for the appellant and having been believed by the High Court could be pleaded as a valid cause for re-admission of the I.C.A. We are clearly of the view that the High Court was justified in accepting the application for restoration/re-admission of appeal in terms of Order 41, Rule 19, C.P.C. We, however, expect that the learned I.C.A. Bench seized of the matter shall finally dispose of the appeal as expeditiously as possible. The petitioner may move an application to the learned Chief Justice of the Lahore High Court for expeditious disposal of the I.C.A. and if such application is made the same shall be favourably considered.

5. With the above observation, the petition is dismissed and leave declined. H.B.T./B-40/S Petition dismissed.