1979CLC629 (PLP)

Mian Hidayat AU Taib for Respondent. Dates of hearing : 15th and 16th December 1976. These two restoration applications (C. M. 5594/C-76 in S. A. O. No. 437 of 1975 and C. M. No. 5599/C-76 in S. A. O. No. 224/76) arise out of the same circumstances. They are, therefore, being disposed of together.

2. Mian Israrul Haq, Advocate, is the counsel for the appellant in both the appeals. They were dismissed for non-prosecution on 5-10-1976 with the following order "Case has been called out. None has appeared on behalf of the appel lant. It is already 12-45 p. m. Learned counsel appearing in both these appeals, namely S. A. O. 224/76 and S. A. O. 437/75 state that they have not seen Mian lsrar-ul-Haq, Advocate in the Court today, nor have they seen the appellants in these two cases throughout the day. Dismissed for non-prosecution. There shall be no order as to costs." In the restoration applications moved on 6-10-1976, the cause shown is as follows :- "That the non-appearance of the appellant or his counsel on the date when the case was fixed for 5-10-1976 was not due to the negligence or intentional. Unfortunately the clerk of the counsel of the appellant omitted the case in regular list as he was ill and could not check the list properly due to which the appellant or his counsel could not appear at the time when the case was called for on the date fixed." The applications are supported by the affidavits of the clerk of the learned counsel, The relevant portion thereof reads as follows :- "That the deponent omitted to check the name of Mian Asrarul Haq, Advocate, in Appeal No. 224 of 1976 as the deponent was ill during these two days and could not check the list properly. That due to the bona fide mistake of the deponent Mian Asrarul Haq could not appear in the appeals mentioned above . . . . ."

3. Relying on the affidavits of the clerk, learned counsel for the applicants contends that they would suffer loss due to genuine incapacity and mistake on account thereof committed by his clerk, therefore, the appeals should be restored. He has cited Manager, Jammu & Kashmir State Property in Pakistan v. Khuda Yar and another (P L D 1975 S C 678) to contend that the ruling laid down in Zulfiqar Ali v. Lal Din and another (1974 S C M R 162) is not inflexible and should not be followed rigidly and blindly. He has cited Salamat Bibi an s others v. Settlement and Rehabilitation Commissioner, Multan (P L D 1966 S C 467), Municipal Committee, Rawalpindi through the Secretary, Municipal Committee, Rawalpindi v. Raja Muhammad Sorwar Khan (1968 S C M R 817), Muhammad Haleem and others v. H. H. Muhammad Nalm and others (P L D 1969 S C 270), Sultan Ahmed and others v. Mst. Khurshid Bibi and others (1979 S C M R 455) and Faridsons Ltd. v. Abdul Ali Moosabhoy & Sons (P L D 1963 Kar. 424) in support of his con tention that genuine and bona fide mistake should be regarded as sufficient cause for restoration. He also distinguished Mst. Taj Beguin ani another v. Sultan Khan and 12 others (1968 S C M R 193).

4. Learned counsel for the respondents in S. A. O. No. 224/76, distin guished the ruling of the Supreme Court in the case of Manager, Jammu & Kashmir State Property in Pakistan and contended that it was on account of very special circumstances therein, namely, "valuable piece of property near Railway Station, Lahore belonging to Jammu & Kashmir State" was involved, therefore, a departure was made from the rule laid down in the case of Zulfiqar Ali. According to him, the said rule in the case of Zulfiqar Ali was fully applicable in this case. In support thereof he also cited Mst. Tay Begum and another v. Sultan Khan and 12 others, Muhammad Nawaz and 3 others v. Mst. Sakina Bibi and 3 others (1974 S C M R 223), Haji Muhammad Sharif v. Settlement and Rehabilitation Commissioner and others (1975 S C M R. 86), Iqbal Ahmad v. Mst. Sharif-un-Nisa and others (P L D 1967 Lab. 1098), Sawab Khan v. Dr Abdul Haoid Khan (P L D 1968, Lab. 1224) and Maung Than v. Zainat Bibi and another (A I R 1926 Rang. 50).

5. Learned counsel for the respondents in S. A. O. 437/75 argued that the failure of the clerk of the counsel and/or the counsel himself to notice a case in the cause list has never been treated as "sufficient cause" for restoration. 'He cited Mrs. Zia Iqbal v. Samad Khan and 3 others (P L D 1974 Note 67 at p. 107), wherein the earlier cited two Lahore cases 4 Iqbal Ahmad and Sawab Khan another and Zulfiqar Ali, were also cited.

6. It is true, that the trend of recent authority (in line with the ratio in the case of Zulfiqar Ali) is that if a party engages a counsel "who was lacking in his sense of responsibility to the Court, it is he who should suffer and not ,4 the other side". The clarification of the rule by the Supreme Court in the case of Manger, Jammu & Kashmir State Property in Pakistan does not have the effect of reversal of the underlying principle of the above rule. Its rigour, however, has been reduced by a note of caution that adherence thereto should not be rigid and blind so as to ignore very special circumstances in individual cases where departure might be necessary in the interest of justice. These observations were prefixed with the view that the peculiar circumstances of the case before their Lordships, "would fully .justify the invocation of this Court's constitutional power to do complete justice notwithstanding the technical objections . . . . . .".

7. In this case these are no special circumstances. A usual incidence of omission/mistake by a clerk of a learned counsel, on account of his illness, has been put forward as an excuse for his not having noticed the case in the cause list. No explanation has been offered with regard to the failure of the appel lant and/or the learned counsel himself remaining vigilant about the fixation of the case. It has been urged from the respondents' side that there is nothing even in the affidavits of the clerk of the learned counsel to show that he was so seriously ill that he was unable to check the list properly. Many other questions would also arise, namely, whether the learned counsel should not have made an alternative arrangement of getting the list checked through another clerk or should not have himself checked the list, at least, by way of abundant caution, in case his clerk was incapacitated, fully or partially, to do the needful in this behalf. Learned counsel for the applicants has not been able to meet the confident assertion made by the learned counsel for the respondents in S. A. O. No. 437/75 that the like of cause shown in these cases has never been treated as sufficient. Reliance by the learned counsel for the respondents on the rulings cited by them is fully justified. There is no justi fication in this matter for making departure from the rule laid down by the Supreme Court in the case of Zulfiqar Ali and other cases where similar views were expressed.

8. In the circumstances of the case it is held that sufficient cause had not been shown to restore the appeals. These applications are accordingly dismissed. Petition dismissed.