1983 PLP 2197 (CLC)

Abdul Hakim Khan for Respondents. Date of hearing : 1st September, 1982. The brief facts of the case for the purposes of this appeal are ,that against the judgments and decrees passed on 31st August, 11980 in Suit No. 249/78, Suit Nos. 3254/78 and 3252/78 the appellant filed Civil Appeal No. 389,!80 which came up for hearing before the learned 1st Additional District Judge, Karachi on 10th December, 1980 when it was dismissed for default on account of non‑appearance of counsel for the appellant. On 6th January, 1981 application was filed by the appellant under Order XLI, rule 19, C. P. C. for re‑admission of the appeal on the ground that the Advocate for the appellant had suddenly fallen seriously ill and, therefore, could not attend the Court on the. above‑mentioned date of hear ing when the appeal was dismissed for default. This application was fixed for hearing on 24th February, 1982 when counsel for both the Sides were found absent and accordingly the application for re‑admission of the appeal was dismissed.

2. This was followed by application for restoration of the application earlier made under Order XLI, rule 19, C. P. C. In support of the application it was pleaded that the appellant had brought his Advocate on 24th February, 1981 from another Court at 10‑30 a. m. but found that the application (under Order XLI, rule 19, C. P. C.) had already been dismissed for default early in the morning. The learned lower Appellate Court while placing reliance upon the case Ahmad Ali v. Registrar, Co‑operative Societies, (P L D 1971 Kar. 182), held that the application was maintainable but dismissed the same on the ground that there was no proof by way of late diary or anything else to support the contention raised by‑ the appellant that he had bought his Advocate at 10‑30 a. m. on 4th February, 1.981 and that the application itself had been moved on 7th March, 1981. It was further observed, that the appellant should have been present when the application was taken up.

3. The above order of the lower Appellate Court has been challenged before this Court.

4. I heard the learned counsel for the parties and find that the reasons advanced in support of the dismissal of the application by the learned lower Appellate Court are not convincing. In the first place it would be observed that after an application has already been dismissed in the early hours of the day no late diary is written so as to record if the defaulting party subsequently appeared. Even the learned counsel for the respondents could not point out any such practice adopted by any of the subordinate Courts. Secondly, as regards the absence of appellant and his Advocate on 24th February, 1981, I find from the record that the same has been sufficiently explained. The appellant had gone to bring his Advocate from another Court and it was expressly stated that they in fact had reached the Court at 10.30 a. m. The dismissal of the application took place in the early hours of the day. However the circumstance established to the effect mentioned above that at 10.30 a. m. on the same day the Advocate for the appellant who was busy in another Court, had appeared alongwith the appellant, the learned lower Court should have given due weight. A significant fact further to note is that when the application was dismissed for default on 24th February, 1981 neither the appellants nor any of the respondents or their Advocates were present. The respondents, therefore were not entitled to notice of the application, as a matter of right.

5. In my opinion while considering the question if sufficient good cause had been made out for the restoration of the application, the learned lower appellate Court ought to have properly appreciated the difficulties facing the Advocates appearing in the lower Courts, numbering more than 25 in Karachi, where they have to appear on the same day. Reference be made to the principle laid down by the Honourable Supreme Court of Pakistan in the case of Muhammad Haleem v. H. H. Muhammad Naeem (P L D 1969 S C 270). 6,. For the reasons discussed above having found that good cause for absence of the appellant on 24th February, 1981 when the case had been dismissed, was made out, the delay of few days in making the application, which had been filed within time prescribed by law not being fatal, I accept this appeal and order the restoration of application made under Order XLI, rule 19, C. P. C.

7. At this stage Mr. Abdul Hakim Khan submitted that in view of the above order since application under Order XLI, rule 19, C. P. C. has been ordered to be restored he would not oppose the said application for re‑admission of the appeal on the ground that Mr. Mumtaz Hussain Shah Advocate was absent on 10th December, 1981 due to his illness. He explained that he was anxious that the appeal be disposed of at an early date as already lot of delay had been caused due to default on the part i} of the appellant. This submission of the learned counsel is reasonable and accordingly I order that the appeal should also stand re‑admitted to its original number as conceded by Mr. Abdul Hakim and as requested by him direct that the record be sent back to the appellate Court concerned forthwith for hearing of the main appeal. The parties are directed to appear before the learned Appellate Court on 11th October, 1982 and the appeal be disposed of within a period of 3 months,

8. Subject to above observations the appeal stands disposed of. The appellant shall pay Rs. 500 to the Advocate for the respondents within a period of three weeks. M.Y.H. Appeal dismissed.