1981 PLP 126 (SCMR)

ANWARUL HAQ, C, J.-This petition, seeking leave to appeal against an order made by the Lahore High Court on the 22nd of April, 1980, is barred by 103 days. In the application for condonation of delay, it is stated that the petitioner was not aware of the decision of the writ petition, as his counsel Rana Abdul Majid had not informed him of the date of hearing, nor of the result of the case, when it was dismissed by the High Court on the 22nd of April, 1980. It is stated further that it was only on the 17th of September, 1980, that the petitioner met the patwari, Halqa, who informed the petitioner that he had received a copy of the order of the High Court deciding the writ petition in favour of respondent No. 1, and that he would soon be implementing the said decision. It was only on getting this information that the petitioner rushed to Lahore, met his counsel, and on the latter's advice applied for a certified copy of the High Court's order on the 18th of September, 1980, that the copies were made ready on the 29th of September, 1980, but were delivered to the petitioner on the 1st of October. 1980, and he filed the present petition on the next day i.e. the 2nd of October 1980. It is submitted on behalf of the petitioner that the delay that has occurred in this case was solely due to omission on the part of the petitioner's counsel to inform him of the result of the case in the High Court, and that the counsel had failed to do so on account of the fact that he had suffered a heart attack and had remained confined to bed. In support of this last submission a certificate signed by Rana Abdul Majid on the 5th of October, 19811, has been placed on the record. It is to the effect that :- "It is certified that I could not communicate the decision of writ petition decided by Mr. Justice Manzoor Hussain Sial to Jhanda Khan in district Gujrat for illness due to heart attack and remained confined to bed." In support of his submission that the petitioner should not be made to suffer for the negligence of his counsel, Mr. Abdul Rehman has referred us to Seth Shivrattan G. Mohatta v. Messrs Muhammadi Steamship Co. Ltd. (P L D 1965 S C 669) and Muhammad 1faleern v. H. H. Muhammad Naim (P L D 1969 S C 270). It seems to us that not much benefit can accrue to the petitioner on the basis of the certificate furnished by Rana Abdul Majid, Advocate, regarding his illness. We notice that the. certificate does not mention the dates during which the learned counsel had been indisposed and confine to bed so that he could not send my intimation to the petitioner regarding the dismissal of his case in the High Court. As already stated, the judgment of the high Curt was announced on the 22nd of April, 1980, and it was only by chance that the petitioner is stated to have come to know of the High Court's order on the 17th of September, 1980, through the village patwari This makes a period of almost five months, but. there is no material before us to come to the finding that Rana Abdul Majid, Advocate was so seriously ill during all this period as not to be able to send an intimation to the petitioner regarding the order made by the High Court. We consider, therefore, that this is a case of clear negligence on the part of the counsel, and the question is whether this would constitute sufficient reason for condoning a delay of 103 days, during which a valuable right has accrued in favour of the contesting respondents. In the first case relied upon by Mr. Rehman, the facts were that the suit was at one stage dismissed on account of default in appearance by the plaintiff's counsel, but the suit was resorted by a Division Bench of the High Court on the ground that although the plaintiff's counsel had been negligent in the prosecution of the suit, but it would be wrong to make the plaintiff suffer on account of his professional miscondent. In refusing to interfere with this view of the High Court, it was observed by the Supreme Court that: "In the circumstances of the case, we concur in the view and would add that there were other sufficient and good reasons for restoration of the suit. The 1st of May, 1957, on which date the suit was dismissed in default, had been declared as Eid holiday, but the Court remained open because the moon was not sighted or the previous evening. This, by itself Constituted a sufficient cause for excusing default, in appearance by the plaintiff on that day and, in any case, a counsel had put in appearance on their behalf though only to ask for adjournment for filing a power of attorney in his name a request, which in view of the fact that Mr. S. A Rafique, learned counsel of the plaintiff, had, in the meantime, gone abroad for treatment of his failing eye-sight merited to be accepted by the learned single Judge". It will be seen that this case cannot be taken to be an authority for the proposition that the litigant should not be made to suffer on account of the negligence of his counsel, as there were, indeed, other sufficient reasons for the restoration of the suit, and it was, inter alia, on this ground that this Court refused to interfere with the order of restoration made by the appellate Bench in the; High Court. In the second case referred to by Mr. Abdur Rehman, it was observed by a Full Bench of this Court that "Although sufficient cause is not susceptible of an exact definition and no hard and fast rule can be laid down to cover all possible cases, yet where the non-appearance is not intentional and the counsel or his client has made genuine efforts or taken reasonable precautions to be present at the hearing, a very strict view should not be taken. When dealing with application for restoration of matters dismissed for default weight should be given to the difficulties of counsel who have to appear in more than one case in different Courts on the same day." These observations were made in the matter of the restoration of a suit dismissed for default in appearance of the counsel, and it was added that "a dismissal for non-prosecution should therefore be an exception and not a rule". It seems to us that even this case is not of any direct assistance to the petitioner before us. From the facts narrated in the judgment it becomes clear that the default on the part of the counsel was due to the fact that he was engaged before another Court, and there were indications to show that the counsel and his client had made genuine efforts or taken reasonable precaution to be present at the hearing. These observations have no relevance to the facts of the instant case. Here, we are dealing with a case of gross negligence on the part of the counsel to inform the petitioner oft the result of his case in the High Court ; and also clear negligence on the part of the petitioner to keep himself in touch with the progress of the case to the High Court, as was his duty to do. In this connection we may, with advantage, refer to the decision in two recent cases, namely Mustafa v. Settlement Commissioner (1974 S C M R 104) and Muhammad Nawaz v. Mst. Sakina Bibi (1974 S C M R 223), m which it was emphasised that it was the duty of the petitioner to keep himself informed about the fate of his case in the High Court, and negligent on the part of the counsel to give him the necessary information would not per se constitute sufficient ground for condonation of delay when valuable rights have accrued to the opposite-party by efflux of time. In our view these observations apply with full force to the facts of the case before us. As a result, we consider that no justification has been made out for the condonation of an inordinate delay extending to 103 days. The petition is, accordingly, dismissed as hopelessly barred by time. Petition dismissed.