1984 PLP 619 (PLC(CS))

Industrial Relations Ordinance (XXIII of 1969)

‑‑‑S. 37 read with Civil Procedure Code (V of 1908), O. XLI, r. 19‑Appeal ‑ Dismissed in default ‑ Re‑admission ‑ Default in appearance due to negligence of counsel‑Negligence not characterised as gross‑Respondent remaining waiting upto last -Application for re‑admission, in circumstances, accepted subject to payment of cost of Rs. 100 as compensation to respondent. Asad Munir for petitioner. Respondent in person. Date of hearing : 2nd May, 1982. The appeal was dismissed in default on 2nd December, 1981. The petitioner has now applied for the re‑admission of the appeal. The petition has been opposed by the respondent. The grounds given in the petition are that the learned counsel had come at 9‑30 a. m. but was told that some cases of the previous day's cause list would be taken up first and that since the present appeal was listed in the bottom, learned counsel left at 10‑00 a. m. to attend other cases in the other Courts, that the learned counsel returned at 11‑30 a. m. and waited up to 12‑30 p. m. but due to long cause list the turn of the appeal did not come, that the learned counsel left to attend other cases in other Courts and came back at about 1‑45 p. m. when he came to know that no more cases would be taken up by the Court and that receiving this information, the learned counsel left. The petition is supported by an affidavit. No other evidence documentary or oral was produced on behalf of‑ the petition. The learned counsel said that he wanted to produce Mr. Tariq Masood but he had not brought him on the date fixed for the hearing of the restoration peti tion. The respondent came in the witness‑box himself and deposed that he could not say if the learned counsel for the petitioner had come or not at 9‑30 a. m. on 2nd December, 1981 but he added that he had not seen him. He belied the assertion made in the petition for restoration that at 10‑00 a. m. learned counsel for the petitioner had left the Court. He further stated that it was wrongly recorded in the affidavit that at 11‑30 a. m. learned counsel had come again and at 12‑00 noon he had left. He also belied the assertion made in the petition that at 1‑45 p. m. learned counsel for the petitioner bad come again. He also stated that in the petition it was wrongly mentioned that the learned counsel for the petitioner had learnt that no other case would be taken up on that day. The case of the petitioner is not that the learned counsel met the respon dent when he came to this Tribunal at 10‑00 a. m., at 11‑30 a. m. and again at 1‑45 p. m. If the assertion of the learned counsel for the petitioner had been that at every time he came to this Tribunal on 2nd December, 1981 he had met the respondent, of course the affidavit of the learned counsel would have been controverted by the statement of the respondent. The respondent may not have seen the learned counsel for the petitioner, therefore, he made statement that the affidavit filed by the learned counsel for the petitioner to the effect that he came at 9‑30 a. m., at 10‑00 a. m., at 11‑30 a. m. and at 1‑40 p. m. was wrong. However, this assertion appears to be incorrect that this Court had an nounced at 1‑45 p. m. that no other case would be taken up. If any such announcement had been made, the remaining cases would have been adjourned. The right course for the learned counsel was to enquire from the Reader, if any other case would be taken up or not, but this affidavit is not to the effect that he had enquired from the Reader or any other official of the Court that after 1‑45 p. m. no other case would be taken. Learned counsel, therefore, cannot be said to be not guilty of negligence, although the negligence, may not be characterised as gross. Since the respondent had waited upto the last, he was put to great inconvenience which can be compensated by costs. I, therefore, on the condition of the payment of P.s. 100 as costs restore the appeal. The appeal shall stand restored on the payment of costs and not otherwise. The costs be paid within ten days. A. E. Re‑admission application accepted.