1988 PLP 1944 (CLC)

This miscellaneous appeal filed against an order dated 15‑3‑1979 dismissing the application of the appellants under Order 41, Rule 19 read with section 151, C.P.C. The order came to be passed in the following circumstances. The appellants had filed a Civil Appeal No. 370/1378 which was posted for hearing before the IIIrd Additional District Judge, Karachi on 30‑1‑1979.. According to the version of the learned counsel, who has appeared to argue this miscellaneous appeal, he attended the Court at about 10‑00 a.m. in the morning. By that time the learned Presiding Officer had not reached the Court. Then he again appeared at 12‑00 noon and found that the learned Presiding Officer was busy in writing Judgment in Chamber. The learned counsel contends that on that very day he had fixed appointment with Mr. Patel where he had to take his brother Ashiq Ali for the treatment of his leg. The learned counsel, therefore, filed an application praying for adjournment of the case. The reason for adjournment was also mentioned in the application and it may be quoted here: "This Hon'ble Court may be pleased to adjourn this matter for some other date in the interest of justice, as the undersigned counsel has to take his brother to the doctor/surgeon at 1 p.m. today, who is suffering from severe leg swelling and trouble. " When the case was called up during the course of ,the day learned counsel appearing for the respondent opposed the request for adjournment. The reason for adjournment was not examined. The conduct of the appellant's counsel was found to be dilatory as he had sought several other adjournments on the previous dates. This application was, therefore, dismissed and the appeal was also dismissed for non‑prosecution. On 4‑2‑1979 the learned counsel filed application under Order 41, Rule 19 praying' for restoration and readmission of the appeal to its original number for hearing and disposal on merits. An affidavit was also filed in support of this application and all the facts narrated in the earlier paragraph of this judgment were also narrated in the affidavit. The learned counsel appearing before me points out that none of the averments contained in this affidavit were contested by the Clerk of the Estate Department of the respondent in the counter‑affidavit filed by him. The learned Judge after perusing these affidavits of the parties and after hearing the counsel dismissed the application under Order 41, Rule 19, C.P.C. by' his order dated 15‑3‑1979. The appellants have filed this miscellaneous appeal against this order. I have carefully perused this order and it appears to me that the learned Judge seems to be impressed by the allegation that the conduct of the appellants was not very cooperative and helpful in the past. He had on previous dates obtained adjournments causing delay in the disposal of the appeal. While fully appreciating the anxiety of the learned Judge for disposal of the case pending before him, I have also to see whether he has bestowed full attention to the reasons mentioned by the applicant for his non‑appearance on the particular date of hearing when the learned Judge has passed this order. As .it was incumbent upon him to examine whether on the date when the dismissal order was passed a proper explanation for absence was offered or not. I am afraid that the learned Judge has not examined this part of the case which was very important in the circumstances. He simply said; "the lethargy and undesirability of the appellants to proceed with the appeal is further strengthened by the fact that seven adjournments had been obtained on their behalf.' The appellants have failed to establish that the absence of themselves and their Advocate on 30‑1‑1979 was due to circumstances beyond their control. As a matter of fact the absence of the appellants and their Advocate could have been easily avoided, had there been a desire to prosecute the above appeal. Since the absence of appellants and their Advocate was not due to unavoidable circumstances or on account 'of circumstances over which they had no control, the question of restoration of the appeal does not arise". In the first place this was an appeal and the presence of the appellants in person was not at all necessary. It was the Advocate, who had to argue the appeal after taking instructions from the appellants and this Advocate on account of his personal difficulty had filed an application requesting for adjournment. Neither in the affidavit filed by the respondent before the learned Judge nor in the order itself there is an indication to suggest that the excuse advanced for non‑appearance on that date was not believed ‑by the learned Judge. As a matter of fact the learned counsel for the appellants alongwith his supporting affidavit to the application for restoration he had filed several tests reports from the Surgeon's Clinic relating to the same date i.e. to say 30‑1‑1979. These documents show that he had attended the Clinic where all the tests were carried out on 30‑1‑1979. Completely ignoring all these documents and the prayer in the application,. the learned Judge has found fault with the appellants firstly on account of their personal non‑appearance and secondly on account of the previous conduct for seeking adjournments of the appeal. Both these reasons seem to be unconvincing for deciding an application under Order 41, Rule 19, C.P.C. Surely the absence of the appellants counsel has caused inconvenience to the learned Judge and certain degree of hardship to the respondent, but proper course would have been to burden the appellants with costs and, not to dismiss the appeal on account of some reason or difficulty of the Advocate which has resulted in penal consequences to the appellants themselves. Mr. S. M. Muslim Naqvi learned counsel appearing for the respondent K.M.C. in this appeal makes a statement that this appeal has become in fructuous. If it is so, this order will naturally not benefit the appellant. But because without having the full facts as to the appeal having become in fructuous, the civil appeal is restored to its original number for regular hearing and disposal on merits by the learned Judge. H.B.T./M‑373/K Appeal restored.