2005 PLP 1407 (MLD)

C.M. Nos.677 and 678 of 2005. These petitions seek restoration of the main writ petition dismissed for non-prosecution on13-12-2004 and condonation of delay in filing the application for restoration.

2. Precisely, relevant facts are that the petitioner out of suit for recovery of maintenance allowance by respondents Nos.1 and 2 filed a Constitutional petition wherein a pre-admission notice to the respondent No.1 was issued on 30-9-2004. After service of respondent No.1, the case was fixed in motion for hearing on 13-12-2004 when none appeared on behalf of the petitioner, in spite of appearance of name of the learned counsel in the daily cause list of this Court and Mr. Mushtaq Hussain Advocate represented the respondents Nos.1 and

2. Case was called for a number of times and ultimately the same was dismissed for non-prosecution.

3. The petitioner on 1-6-2005 filed an application for restoration of the writ petition averring that he had moved an application for early hearing of the case on which office objected that the writ petition has already been disposed of on account of non-appearance, on 13-5-2004. It was further pleaded that fixation of case on 13-5-2004 was not within the knowledge of the counsel and the petitioner slipped for noticing the date fixed by office. Petitioner also filed another application under section 5 of the Limitation Act, 1908, for condonation of delay wherein the plea raised was that the Bar Clerk failed to circulate the list of the cases in the office of the counsel for the petitioner, and thus, fixation was not within the knowledge of the petitioner.

4. I have heard the learned counsel for the petitioner and have examined the record, with his assistance. Reasons mentioned in both the petitions, one for restoration and other for condonation of delay, do not coincide, as the fact of non-circulation of list dated 13-5-2004 is not mentioned in restoration application wherein it was simply mentioned that counsel had no knowledge of fixation of case otherwise there was no reason for his non-appearance. Besides the fact that these petitions do not make out sufficient cause for restoration, no affidavit of the counsel to whom list of the titled case was not circulated by the Bar has been appended and at the same time, the petitioner has not produced any affidavit of concerned employee of the Bar that he did not circulate the list.

5. Service of providing list to the Advocates by the Bar is only complementary and has no legislative backing. Counsel in a case is supposed to check the list of the cases fixed for hearing, displayed in the office, outside the Court Room or in the Bar Room. The petitioner has not explained as to why the fixation of case was not checked up by him, his counsel or by any of the persons from the office of his counsel. Mere vague assertions without any proof for fixation of case not within the knowledge of the petitioner or his counsel were not enough for restoration of case. Title of the case, its number and name of the learned counsel for the petitioner were correctly inscribed in the cause list, thus, there was no sufficient cause for restoration of the writ petition. A Likewise, the petitioner failed to explain delay of about 4 months for seeking restoration and there being no explanation for each days' delay, an inordinate unexplained delay cannot be condoned.

6. For the reasons noted above, no case for restoration of main writ petition dismissed for non-prosecution on 13-12-2004 could be made out. These petitions, consequently, being devoid of any merit are dismissed in limine. M.B.A./Z-99/L Petition dismissed.