2009 PLP 1015 (MLD)

NADEEM AZHAR SIDDIQI, J.

By filing this Miscellaneous Appeal the appellants have challenged the order, dated 6-9-2006 whereby Civil Appeal No.30 of 2004 was dismissed by the learned Appellate Court for non-prosecution and the order, dated 31-7-2007 whereby the application for restoration of the said appeal was also dismissed.

2. In short, the brief facts of the case relevant for the disposal of this Miscellaneous appeal are that the respondents filed F.C. Suit No.32 of 1995 against the appellants and others for declaration, cancellation of documents and permanent injunction, which was decreed by learned Senior Civil Judge, Thatta vide judgment, dated 27 July, 2004. The appellants challenged the said judgment by filing Civil Appeal No. 30 of 2004 before the learned District Judge, Thatta. This appeal was dismissed vide order, dated 6-9-2006 for non-prosecution as on that date neither the appellants nor their counsel was present in Court. After dismissal of the appeal in non-prosecution the appellant filed an application for recalling the said order, dated 6-9-2006 and for restoration of the appeal to its original position. However, this application was also dismissed vide order, dated 31-7-2007. It is against these two orders that the present appeal has been filed.

3. Learned counsel for the appellants submits that the appellants and their counsel was absent on only one day and the learned Court dismissed the appeal in non-prosecution. He also submits that the restoration application was dismissed without considering the merits thereof. He then submits that the appellants have shown sufficient cause for restoration of the appeal and have also shown that there was no negligence or wilful absence on the part of the appellants or their counsel on the said date. He finally submitted that law favours adjudication of the cases on merits and technicalities should be avoided in dispensation of justice. The learned counsel relied on the following reported judgments: -- (1) Abdul Ghafoor v. Mst. Amtual Saeeda, 1994 MLD 1463 (2) Nabi Bakhsh v. Muhammad Aslam 1998 MLD 1830 (3) Pirzada Niaz Ahmed Farooqi v. Muhammad Bux, 2004 SCMR 862, (4) Jane Margrete William v. Abdul Hamid, 1994 SCMR 1555 and (5) Sardar Begum v. Muhammad Anwar Shah 1993 SCMR 363.

4. On the other hand the learned counsel for the respondents has supported the two impugned orders and submits that no sufficient cause has been shown for re-admission of the appeal. He then submits that the appeal was filed by two appellants and absence of both the appellants on the said date i.e. 6-9-2006 has not been explained. He also submits that no medical certificate has been produced along with the application for restoration of the appeal to show that the appellant was ill as stated in the affidavit and that affidavit of the counsel who was appearing for the appellants had also not been filed. He also submitted that the parties are responsible for the negligence of their counsel and that unless the absence is explained and sufficient cause is shown the order for dismissal of the appeal in non-prosecution as well as the order for dismissal of the restoration application cannot be interfered with. He relied on the following reported judgments in support of his contentions:-- (1) Pirzada Niaz Ahmed Farooqi v. Muhammad Bux, 2004 SCMR 862. (2) Dhanjishaw Bahramji Ghadialy v. Abdul Latif, PLD 1983 Karachi 121, and (3) Ghulam Rasool v. Muhammad Ramzan, 2001 MLD 1091.

5. I have heard the learned counsel for the parties and have perused the record and the case-law cited before me. .

6. The appeal was dismissed on 6-9-2006 for non-prosecution as under:

"This appeal is called for hearing/final arguments but neither advocate for appellants nor appellants nor appellants are present. No intimation receive till 12.15 p.m. case is old one. Honourable High court of Sindh, while annual inspection of this Court directed to this Court to dispose of the appeal within 3 months. The said period is going to be expired. Advocate for respondents are present. Since appellants are absent as such this appeal is dismissed in non prosecution."

7. The appellants filed an application on 20-9-2006, which was within time, for recalling the above order and restoring the appeal to its original position, which was dismissed in the following terms:-- "...neither advocate for appellant nor appellant was present. No intimation received till 12-15 p.m. Case was old one. Honourable High Court of Sindh while annual inspection of the Court directed to the Court to dispose of appeal within 3 months. The said period appeal of was going to be expired (sic). Advocate for respondent was present. It also appeared that advocate for the appellants has not produced any slight proof that appellant was actually lying ill on 6-9-2006 only the affidavit of appellant along with restoration application is not sufficient. I have perused the record shows that application for restoration of appeal has not been filed under proper and specific. provision of law. Moreover, the law supports vigilant and not indolent, hence the impugned order passed by the Court does not warrant to interference and find no merits in the instant appeal which is hereby dismissed. (produced verbatim)

8. In the affidavit filed in support of the above restoration application the appellant No.1 stated on oath that he as well as his counsel was ill and none of them was in a position to attend the Court. No counter affidavit was filed to this affidavit to controvert these facts.

9. It is now well-settled principle of law that technicalities in dispensation of justice should be avoided and as far as practicable the cases are to be decided on merits. The Court would be justified to dismiss a case for non-prosecution if it is satisfied that the defaulting party is trying to avoid to proceed with the case and are trying to linger on the proceedings. In case when on at least 2 or three dates the defaulting party avoids to appear and proceed with the case the Court would be justified to dismiss the case in non-prosecution. However, dismissing an appeal for one day's absence on the part of the appellants and refused to readmit appeal is bit harsh. The Court has to strike a balance between the two extremes i.e. neither it should allow endless chances to a party to proceed with a case and thus delay the justice nor a party is to be dealt with in such a harsh way by penalizing it for one day's absence. However, it seems that rather than the merits of the case, the learned Appellate Court was influenced by this Court's direction to dispose of the said appeal within three months. However, this Court did not visualize such disposal of the appeal which is strangulation of justice. It is also not mentioned as to when the said period of three months was going to expire. It would have been prudent for the appellate Court to have adjourned the case to a fixed date to provide a chance to the appellants to proceed with the case.

10. In the reported case of Imtiaz Ahmed v. Ghulam Ali (PLD 1963 SC 382), the Hon'ble Supreme Court has held that "the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it is essential to comply with them on grounds of public policy". It was further held in the same judgment that "any System which by giving effect to the form and not the substance defeats substantive rights is defective to that extent."

11. In another reported case of Pirzada Niaz Ahmed Farooqui v. Muhammad Bux (2004 SCMR 862), the Hon'ble Supreme Court has restored the petition dismissed by the High Court and has held that conduct of the counsel may be reprehensible, ends of substantial justice demand that the parties should not suffer on account of negligence or indifferent attitude on the part of their counsel in whom they repose full confidence.

12. In the reported case of Nabi Bakhsh v. Muhammad Aslam (supra) a learned Single Judge of the Lahore High Court has held that averments made in the application for restoration of appeal supported by affidavit not rebutted by counter affidavit can be given weight.

13. In the reported case, of Mst. Sardar Begum v. Muhammad Anwar Shah (supra) the Hon'ble Supreme Court has held that a party should not be denied a relief on account of technicalities in the procedural law, as the same are framed for the purpose of regulating the legal proceedings, they are intended and designed to foster the cause of justice rather than to defeat it.

14. In the reported case of Jane Margrete William v. Abdul Hamid '(supra) the Hon'ble Supreme Court has held that mention of a wrong provision of law cannot be considered fatal for the grant of relief if it is otherwise available under the law to an aggrieved party.

15. The case-law cited by the learned counsel for the respondent are distinguishable on facts and are not directly applicable to this case.

16. In view of the above discussion, I am of the considered opinion that the learned Appellate Court was not justified in dismissing the appeal due to absence of the parties and their counsel only on one day and thereafter for dismissing the restoration application again on the same grounds on which the appeal itself was dismissed without considering the cause shown by the appellants for their non-appearance on the said date. It would be appropriate if another chance is provided to the appellant's to proceed with the case.

17. For the above reasons, this appeal was allowed by a short order, dated 14-4-2009. M.H./A-68/K Appeal allowed.