1993 PLP 256 (SCMR)
GHULAM MUSTAFA SHAH‑‑‑Appellant Versus HAJI through Legal Heirs and others‑‑‑Respondents
| Citation | 1993 PLP 256 (SCMR) |
| Forum / Court | Supreme Court of Pakistan |
| Bench Members | Abdul Shakurul Salam and Saleem Akhtar, JJ |
| Parties | GHULAM MUSTAFA SHAH‑‑‑Appellant Versus HAJI through Legal Heirs and others‑‑‑Respondents |
Q1: What are the key laws and sections cited in 1993 PLP 256 (SCMR)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1993 PLP 256 (SCMR)?
The case was heard and decided by the Supreme Court of Pakistan bench comprising: Abdul Shakurul Salam and Saleem Akhtar, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1993 PLP 256 (SCMR) (GHULAM MUSTAFA SHAH‑‑‑Appellant Versus HAJI through Legal Heirs and others‑‑‑Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- S.M. Tayyab, Advocate Supreme Court and Ch. Mehdi Khan, Advocate‑on‑Record for Appellant.
- Date of hearing: 16th November, 1992.
- SALEEM AKHTAR, J: ‑‑The appellant by the leave of this Court challenges the order of learned Judge in Chamber whereby the application under Order XLI, Rule 19, C.P.C. for re‑admission of the appeal was dismissed. The appeal was dismissed on 18‑10‑1988 and an application for re admission was made on 22‑10‑1988. The advocate for the appellant filed his affidavit stating that he could not detect the case while examining the cause list and inadvertently lost sight of it. The explanation was not accepted. Leave was granted to consider whether in view of the affidavit of the counsel in the High Court and decision in Shoukat Hussain and others v. Mst. Saghiran Begum and others PLD 1983 SC 263, the impugned order could be justified.
- The explanation offered by the learned counsel for the appellant was that due to over‑sight he could not notice case in the cause list which resulted in his non‑appearance on 18‑10‑1988. This statement made in the affidavit has not been challenged or controverted by filing any counter‑affidavit as stated by the learned counsel for the appellant. The appellant had made the application with promptness and there does not seem to be any negligence or carelessness on the part of the Advocate in not noticing the case which was listed in the cause list. As the error and slip occurred it is to be considered whether the absence was deliberate, wilful or as result of negligence and carelessness. If the appellant is not guilty of any of these factors and shows bona fide mistake, the case depending on the facts and circumstances, may be restored. Reliance can be placed on Shoukat Hussain and others v. Mst. Saghiran Begum and others (ibid). Applying this principle in our view the appeal should be allowed. The impugned order is set aside and the appeal will now be heard on merits.
Headnotes / Summary
(From the judgment dated 24‑10‑1988 of the Lahore High Court in R.S.A. No.23 of 1978). (a) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑O.XLI, R.19‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Dismissal of application for readmission of appeal‑‑‑Leave to appeal was granted to consider whether in view of affidavit of counsel that while examining cause list, he had inadvertently lost sight of the case, counsel's absence was deliberate, wilful, as a result of negligence and carelessness or was due to bona fide mistake. (b) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑O.XLI, R.19‑‑‑Constitution of Pakistan (1973), Art.185‑‑‑Re‑admission of appeal‑‑‑Explanation offered by appellant's counsel was that due to oversight he could not notice case in the cause list which resulted in his non‑appearance on crucial date viz. 18‑10‑1988‑‑‑Application for re‑admission of appeal was made on 22‑10‑1988‑‑‑Statement of counsel made in his affidavit had not been controverted by filing any counter‑affidavit‑‑‑Application for re‑admission had been made with promptness‑‑‑No negligence or carelessness on the part of counsel in not noticing the case in the cause list had been noticed‑‑‑Absence of counsel on crucial date being neither deliberate, wilful or as result of negligence and carelessness but because of bona fide mistake, appeal dismissed by High Court for his non‑appearance was restored and was directed to be heard on merits. Shoukat Hussain and others v. Mst. Saghiran Begum and others PLD 1983 SC 263 rel. Respondents: Ex parte
Judgment & Decree
SALEEM AKHTAR, J: ‑‑The appellant by the leave of this Court challenges the order of learned Judge in Chamber whereby the application under Order XLI, Rule 19, C.P.C. for re‑admission of the appeal was dismissed. The appeal was dismissed on 18‑10‑1988 and an application for re admission was made on 22‑10‑1988. The advocate for the appellant filed his affidavit stating that he could not detect the case while examining the cause list and inadvertently lost sight of it. The explanation was not accepted. Leave was granted to consider whether in view of the affidavit of the counsel in the High Court and decision in Shoukat Hussain and others v. Mst. Saghiran Begum and others PLD 1983 SC 263, the impugned order could be justified. The explanation offered by the learned counsel for the appellant was that due to over‑sight he could not notice case in the cause list which resulted in his non‑appearance on 18‑10‑1988. This statement made in the affidavit has not been challenged or controverted by filing any counter‑affidavit as stated by the learned counsel for the appellant. The appellant had made the application with promptness and there does not seem to be any negligence or carelessness on the part of the Advocate in not noticing the case which was listed in the cause list. As the error and slip occurred it is to be considered whether the absence was deliberate, wilful or as result of negligence and carelessness. If the appellant is not guilty of any of these factors and shows bona fide mistake, the case depending on the facts and circumstances, may be restored. Reliance can be placed on Shoukat Hussain and others v. Mst. Saghiran Begum and others (ibid). Applying this principle in our view the appeal should be allowed. The impugned order is set aside and the appeal will now be heard on merits. A.A./G‑375/S Appeal allowed.