1983 PLP 2350 (CLC)

The appellant s appeal before the Addititonal District Judge was dismissed in default on 20th April 1978. An application for4 re-admission of the appeal was made by the appellant s counsel on 4th May, 1978. contending to the effect that although the appeal had been fixed for 20th April, 1978 for arguments he had gone to Shakargarh, District Sialkot, in connection with his professional duties and could not return till 23rd Apreil 1978, and as such he was not present when the case was called. It is also submitted in the application that when his clerk attended Court, it transpired that the appeal had been dismissed in default. It was contended in these circumstance, that the absence of the counsel was not intentional and that if the appeal was not re-admited the appellant would suffer irreparable loss. The application was supported by the counsel s affidavit.

2. The application was dismissed by the learned Additional District Judge by passing the impugned order; in which it is observed, that in the application the counsel bad not mentioned any details of his engagements at Shakargarh, and as such his contentions could not be accepted. It is also observed in the order, that before going to Shakargarh the counsel should have intimated the Court, and sought its permission to be absent on the date, or should have made alternative arrangements for the prosecution of the appeal.

3. Learned counsel submits that the appeal had been dismissed in default at 12 noon, which amounted to dismissing the case in the early hours of the day, which could not be done. I do not agree that the appeal could not be dismissed in default at 12 noon, the case having been called once in the morning as well. Learned counsel had made no alternative arrangements for Court attendance on the date. Even his clerk did not bother to enquire about the fate of the case at least before 12 noon. in any case what is relevant for purposes of restoration of this appeal is whether the appellant‑Government, was prevented by any sufficient cause from being represented in Court when the appeal was called. Learned counsel has not been able to persuade me that the sufficiency of any such cause has been established on the record.

4. Learned counsel has also submitted that law favours adjudication on merits, and such adjudication should not be refused unless there be an insuperable practical obstacle in the way. There is indeed such an obstacle in the way, and it is the provisions of Order XLI, rule

19. The appellant not having . succeeded in crossing the hurdle, the appeal cannot be accepted.

5. It is next submitted `that it was a service appeal, and a hot contested matter between the parties and that, it should therefore have been decided on merits. Learned counsel has not been able to produce any case‑law to show that this has ever been a consideration for allow ing an appeal to be restored. There is no merit in this appeal, which accordingly is dismissed in limine. M. Y. M. appeal dismissed.