1994 PLP 436 (CLC)

Ram Saran Das v. Nathwa and others AIR 1919 Lah. 276 and Salamat Bibi and others v. Settlement and Rehabilitation Commissioner, Multan PLD 1966 SC 467 ref. Pir Anwar Rehman for Appellant. Ch. Abdul Rashid Gujjar for Respondent No.3. Nemo for the Remaining Respondents. Date of hearing: 6th November, 1993. This is an appeal against an order of the lower appellate Court dated 29‑9‑1984 by which it declined to restore the appeal dismissed by it for default in appearance on 31‑10‑1983. It was succeeded on the short ground that the appellant was not allowed an opportunity of establishing the allegations made in the restoration application. This view was supported by a judgment of this Court in Ram Saran Das v. Nathwa and others (AIR 1919 Lahore 276(2)). The appeal was fixed for, hearing, on 31‑10‑1983. The appellant was represented by an Advocate. The appellant was lodged in Jail. Therefore, his Advocate was to prosecute the appeal on his behalf. On the date fixed for hearing of the appeal, he once or twice appeared in Court when it was pre occupied with its other judicial business. Eventually, the Advocate failed to enter appearance and the appeal was dismissed towards the closing hours of the Court time. On the following day, an application for restoration of the appeal dismissed for default in appearance on the preceding day was filed by the Advocate himself wherein he gave the account of the circumstances leading to his default in appearance before the Court and dismissal of the appeal on this score. Presumably, he gave his own affidavit in support of the restoration application. Learned counsel for respondent No.3 submitted that affidavit of the Advocate existed on record. Nonetheless, learned Additional District Judge refused restoration of the appeal. At the hearing it was urged that without affording an opportunity of substantiating the averments in the application for restoration, it could not have been dismissed summarily. I think the view urged was correct and had also the support from the judgment of this Court noticed above. Similarly observations in Salamat Bibi and others v. Settlement and Rehabilitation Commissioner, Multan (PLD 1966 Supreme Court 467) were in point. Faced with the above, learned counsel for respondent No.3 had not much to say in opposition. It was true that the matter concerning land in dispute had already been to the Supreme Court of Pakistan. Nontheless, appellant's case was required to be attended to on merits. Summary dismissal of the restoration application, therefore, was unwarranted. I would, therefore, accept the appeal; set aside impugned order and direct the Court below to decide afresh the restoration application in accordance with law and the observations made above. Since the controversy was old and had already suffered a round of litigation uptil the Supreme Court, learned Additional District Judge shall decide the restoration application and in the event of revival of the appeal, the appeal also within three months. There shall be no order as to costs in this Court. Parties shall appear before the Court below on 30‑11‑1993. Records shall be returned to it. AA./M‑1269/L Case remanded.