2002 PLP 1321 (MLD)

Through this Civil Revision, the petitioner has challenged the order dated 13‑3‑1995 passed by Additional District Judge, Liaqatpur whereby he dismissed petitioner's application for restoration of his application regarding re‑admission of appeal dismissed for non- prosecution on 11‑10‑1993.

2. Brief facts leading to hove‑noted petition are that the petitioner had filed a civil appeal which was dismissed for non- prosecution on 11‑10‑1993. He filed` an application for re‑admission of the said appeal which, was also dismissed for, non‑prosecution on 3‑10‑1994. He filed an application for restoration of application for re admission of appeal which was dismissed on 13‑3‑1995 on the ground that petitioner had suppressed material facts and that the affidavits of the applicant and his counsel attached with the application were not properly drafted.

3. Learned counsel for the petitioner has raised following points in support of this civil revision: ‑‑ (i) That petitioner's application foe‑admission of the appeal was dismissed on 3‑10‑1994 as the counsel in his case diary had noted 10‑10‑1994 as the date of hearing. When the applicant attended learned counsel's office on 10‑10‑1994, it was found from the Court that the application had already been dismissed on 3‑10‑1994. The lapse it is submitted, was not intentional but on account of an inadvertent mistake. (ii) That the afore‑referred reason was given in the application for restoration of petitioner's application for re‑admission of the appeal but the learned Court has not considered this aspect. (iii) That the application filed by the petitioner was duly supported by petitioner's affidavit as also the, affidavit of his learned counsel. An affidavit does not contain pleadings of a party and it merely supports the submission made in the application to which, the affidavit is attached.

4. Learned counsel for the respondents has vehemently opposed this petition and submitted that petitioner has prolonged the litigation un necessarily, that he had not been interested in perusing the appeal which was dismissed for non‑prosecution and even his application for re admission of the appeal was dismissed for non‑prosecution. The affidavit attached with the said application, it was contended, was not an affidavit in the eyes of law and the learned Appellate Court rightly dismissed petitioner's application vide the impugned order.

5. I have heard learned counsel for the parties and have also given anxious consideration to the points which have been agitated.

6. The application for restoration of appeal is appended as Annexure H with the petition. It is clearly mentioned in the said application that the counsel had by inadvertence written the date of hearing of the appeal as 10‑10‑1994; although, the actual date was 3‑10‑1994. Learned counsel showed the original diary before this Court which corroborated the stand taken by the applicant before the learned Appellate Court. It seems that the learned Appellate Court, did not attend to this point and instead dismissed petitioner's application for lack of proper drafting of the application as also the affidavits attached with the same. While it is a paramount duty of a counsel to diligently pursue the case of his client and to take all precautions so that client's interest is not in any way jeopardized, yet if on account of a bona fide mistake on the part of the counsel or his clerk, an incorrect date is written in the case diary and for that reason the appeal or the application is dismissed for non‑prosecution, the applicant should not be made to suffer and it would be in the interest of justice to restore the same and decide the matter on merit, I am fortified in my view by a judgment of the Hon'ble Supreme Court titled as Municipal Committee, Rawalpindi through the Secretary, Municipal Committee, Rawalpindi v. Raja Muhammad Sarwar Khan (1968 SCMR 817) wherein it was observed as follows: ‑-- Civil Procedure Code (V of 1908), O. XLI, R. 19‑‑Re admission of appeal dismissed for default

Sufficient cause ‑ Date of hearing by mistake wrongly noted in case diary of counsel‑‑Mistake genuine and bona fide‑‑Held: Sufficient cause: for restoration of appeal. Civil Procedure Code (V of 1908), O. IX, R.9. Learned counsel for the respondent also stressed the point that it was for the second time, when the petitioner had shown his lack of interest and his case was dismissed for non‑prosecution. I am afraid, merely because. the petitioner had to suffer for the second time, would by itself, not be a sufficient ground to deprive him of the right to have his case decided on merit and the facts of each case are to be seen. In Babu Jam Muhammad and others v. Dr. Abdul Ghafoor and others (PLD 1966 SC 461), it was observed as follows: ‑‑ Again, the fact that this was the second occasion on which they were asking for restoration of their suit which had been dismissed for default could hardly be of weight in determining the merits of their second application for restoration.

7. For what has been discussed above, this civil revision is accepted. The order dated 13‑3‑1995 passed by Additional District Judge, Liaqatpur is set aside and the learned Additional District Judge, concerned is directed to decide petitioner's application for restoration of c his application regarding re‑admission of appeal strictly on merit. There shall be no order as to costs. H.B.T. /J‑50/L Revision accepted.