2011 PLP 1341 (SCMR)

SABIHUDDIN AHMED, J.

The petitioner who was employed by the respondent No.1 appear to be aggrieved by an order of the respondent No.1 dated 10-6-2008 placing him in surplus pool. He approached the Federal Service Tribunal for redress without filing a departmental appeal/representation and his appeal remained pending till he was informed through a letter from the Assistant Registrar of the Tribunal that the same along with several others were declared to have abated on 26-6-2006. Thereafter the petitioner filed C.P. No.D-2105 of 2006 before the honourable High Court.

2. This petition came to be dismissed for non-prosecution vide order dated 20-9-2007 by a Division Bench of the High Court. An application for restoration was filed which was also barred by limitation of about 11 days and was admittedly not accompanied by one for condonation of delay. This application came up for hearing on 30-10-2008 and was dismissed by an order, which has been impugned in this petition. The only ground in support of the application stated in the said affidavit may be reproduced as follows:-- "That on the date of the case it was not in my knowledge about date of the case because I was out of the city went to my village which is situated at Backward area of the Larkana there is no any communication system is working there, therefore nobody has contacted, informed about the case therefore may kindly be restored the said matter in the interest of justice."

3. Another affidavit in support of the application was filed by the petitioner a few days prior to the hearing of the application wherein he deposed that on the date of dismissal of the petition he was at his native place and was neither informed about such dismissal nor about the filing of the application for restoration by his counsel. The application eventually came to be dismissed by an order dated 30-10-2008 which has been impugned before us.

4. Mr. Rasool Bux Palejo, learned counsel for the petitioner urged that the policy of the law was that matters should be decided and the power of condonation of delay could be exercised even on oral motion or suo motu. He further contended that reliance on the judgment of this Court in the case of Zulfiqar Ali v. Lal Din and another reported in (1974 SCMR 162) on the part of the honourable High Court was misplaced. He further urged that in the case of Mst. Begum and others v. Mst. Begum Kaniz Fatima Hayat and others (1989 SCMR 883) this Court had held that "sufficient cause" for the purpose of restoration of proceedings was not susceptible of any hard and fast rule and a party should not be deprived of a fair trial on merit except when there was positive evidence of negligence beyond explanation.

5. We have given the contention of learned counsel anxious thought. Indeed, there could be no cavil with the general proposition that cases should as far as possible be decided on merits. Nevertheless the argument that the view taken in the case of Zulfiqar Ali (SUPRA) was wrongly relied upon does not appear to be correct. Learned counsel attempted to distinguish that case by pointing out that the explanation furnished by the counsel for the petitioner was found to be untrue and, therefore, this Court declined to interfere with the order of dismissal passed by the High Court. A careful reading of the judgment however shows that irrespective of the above this Court found the failure of the petitioner to pursue the matter diligently as an additional reason for dismissing the petition. With respect to the case of Mst. Begum and others (SUPRA) it needs to be stated that the Court was persuaded to restore the suit upon the consideration that the advocate was not informed about the date of hearing by the clerk of the Court from whom he had been regularly seeking information and the matter was also being pursued by the plaintiff diligently.

6. As observed in the aforesaid judgment as well that a line has to be drawn between the negligence and bona fide mistake. In the instant case as is evident from the affidavit of the learned counsel for the petitioner, he simply went to his village without informing his client or even any other colleague to attend the matter in his absence. Neither the date nor reason for his having left Karachi or the place from which no communication (in these days of mobile telephone) was possible has been mentioned. At the same time it seems that the learned counsel expected somebody else to apprise him of the date of hearing. Moreover, even after having come to know of the dismissal of the petition he never cared to inform his client as is evident from the latter's affidavit. Interestingly we have also noticed that the petitioner himself has moved an application before the Sindh Bar Council (appearing at page 105 of the paper book) wherein he has inter alia alleged that right from the beginning the counsel used to avoid appearing in the case.

7. Indeed Mr. Palejo also urged that litigants should not be penalized for negligence of counsel. While the argument at first sight might be attractive on a moral plain what is overlooked is whether any justification exists for depriving the opposite party of legal rights acquired owing to negligence of the petitioner or the counsel retained by him? Indeed the right to recover the amount of wrongful loss caused on account of negligence is always available to a party. The record itself shows that the petitioner himself has made an application to a statutory body regulating the conduct of advocates. In any event we are clearly of the view that undue indulgence granted by courts would only multiply such problems.

8. Without commenting in any manner on the merits of the application preferred by the petitioner before the bar council, we may simply observe that it is about time that collective bodies of the bar need to seriously attend to such matters to be able to restore public confidence in the noble profession. In any event no serious question of law is involved nor the findings of the honourable High Court have been shown to be perverse so as to call for our interference under Article 185(3) of the Constitution. The petition is accordingly dismissed and leave to appeal refused. M.H./A-58/SC Petition dismissed.