2022 PLP 2446 (YLR)

SARDAR MUHAMMAD EJAZ KHAN, J.

The captioned application has been filed for restoration of above titled Appeal No.179/2021 which was dismissed for want of prosecution by this Court vide order dated 09.03.2022.

2. The main thrust of the applicant in the application is that the learned counsel engaged by him could not appear before the Court on account of ailment whereas the applicant remained in impression that the learned counsel will appear before the Court on date when the case was called on for hearing. It has been stated that non-appearance of the applicant and his counsel was not deliberate and intentional one, hence, the original case may be restored and decided the same merit because valuable rights of the applicant are involved in the case in hand and if the original lis is not restored, he will suffer an irreparable loss.

3. On application, the non-applicant was summoned who filed objections through his counsel wherein stand taken in application was refuted in toto.

4. Heard. Record perused. A contemplate perusal of record shows that that on 09.03.2022, the main case of the applicant/appellant was called for time and again since morning but no one appeared before the Court and the same was kept pending till the end of the Court time while the case was again called at 02:30 P.M. and at that time nobody turned up behalf of the applicant/ appellant. Although the applicant took the plea that he remained in impression that the learned counsel engaged by him will appear before the Court on 09.03.2022 yet for restoration of original appeal, this is not a valid ground, which does not establish 'sufficient cause', rather it is prime responsibility of the applicant to prosecute his case efficiently and diligently, hence, he cannot deviate from his legal duty because his absence is also questionable that how he did not appear before the Court when the case was called on for hearing and in this regard, grounds of application and personal affidavit are quite silent.

5. According to the version of the non-applicant, two learned counsel have been engaged by the applicant for prosecution of the appeal, hence, the original appeal was summoned by which it transpires that power of attorney appended at page 26 of the paper book in which three learned counsel Messrs Sardar Nisar Ahmed Khan, Arslan Nisar and Sajjad Azam, Advocates, have been mentioned but on their behalf, nothing has been brought on record. It is relevant to mention here that neither personal affidavit of the learned counsel of the applicant has been appended in support of contents of application nor any medical certificate regarding aliment has been brought on record to which it can be assumed that in fact non-appearance of the learned counsel engaged by applicant was beyond their control. It is evident from the record that neither 'sufficient cause' in application for restoration of appeal nor any reliable evidence has been brought on record to which it can be assumed that in fact non-appearance before the Court of the applicant as well as his counsel was beyond their control. Just mentioning the cause of non-appearance on account of ailment of the learned counsel does not constitute 'sufficient cause, hence, the contents of the application for restoration of case do not fall within the purview of 'sufficient cause'. On this point, similar proposition has been resolved by the apex Court in a case titled Kh. Ghulam Qadir and another v. Muhammad Sharif and 11 others 2000 MLD 2047 whereby it has been held that:- "Where suit had been dismissed for non-prosecution, plaintiff in terms of O.IX, R. 9, C.P.C. must satisfy trial Court that there was sufficient cause for his absence on relevant date

Such statutory need cannot be dispensed with merely on the ground that suit must be decided on merits or that in the interest of justice suit must be restored

In application for restoration, no "Cause" whatsoever, muchless a "sufficient cause" was mentioned

Subsequently, on objection of defendants that application for restoration was without affidavit and without assigning any cause plaintiff filed affidavit that he had gone outside the city one day prior to dismissal of suit due to some "Majboori"

Factum of "Majboori" however, was not specifically stated

Question of sufficient cause being question of fact which has to be decided taking into consideration circumstances and nature of cause which prevented party or his counsel from appearing in court

No sufficient cause having been mentioned in application for restoration for absence of party or its counsel, suit could not be restored

Necessary party having not been impleaded in appeal before High Court, the same was incompetent and would entail dismissal on that sole ground

Suit having been fixed for recording statements of parties, such date would be deemed to be date of "hearing" therefore, in absence of any party or its counsel suit was rightly dismissed

Date on which allegation made in pleadings were to be ascertained within meaning of O.X, R.I, C.P.C., same would be a "date of hearing"

Order of High Court being in favour of respondents they could defend order of High Court without filing appeal on a point on which no finding was given by the High Court

Plaintiffs appeal being without merits was dismissed in circumstances." Likewise, an identical controversy has been resolved by the apex Court in a case titled AJ&K Government and 10 others v. Abdul Rashid and 5 others 2002 CLC 1662 through which the following dictum has been laid down:-- "From the survey of case law, it appears that when a case is dismissed for default of appearance of a party or his counsel, it is the duty of that party or counsel to show "sufficient cause" as to why the case was not prosecuted, on the relevant date. If the circumstances were beyond the control of the party or his counsel, then the same has always been considered to be a sufficient cause for the restoration of suit or appeal, as the case may be. In the instant case the sufficient cause shown by the learned counsel for the petitioners is that on the date fixed for hearing the appeal he could not verify from the Registry Office of this Court one day prior to the hearing as a normal practice as to which case is to be heard and which one is to be adjourned as before 20th December, 2001 there were "Eid" holidays; thus the non-appearance on the part of petitioners or their counsel was bona fide and not intentional. Had this been the situation as has been alleged by the counsel for the petitioners in their application for restoration of appeal, probably the argument might have been sufficient to restore the appeal and to hear the same on merits but after going through the objections filed by the learned counsel for the respondents the position seems to be totally different. The whole fabric of the arguments of the learned counsel for the petitioners crumbles down because of the fact that he was duly served with a notice by the Registry Office that the appeal shall be heard on the relevant date, i.e. 20.12.2001. After the service of this notice upon the learned counsel for the petitioners there seems to be no justification to allege that the counsel for the petitioners could not note in his diary the date fixed for hearing the arguments in the appeal. Whether the important points of law and facts were involved in the case is a different question altogether. Similarly the contention that the appeal should have been decided on merits as valuable rights of parties are involved has not been recognized as a sufficient cause for the restoration of suit/appeal which is dismissed in default for non-appearance. It was also the duty of the appellants as well to abreast their counsel of the fact that which date was fixed for hearing the appeal because there are as many as 11 appellants who though are Government officials but they cannot be absolved of their responsibility to contact their counsel to appear and argue the appeal on the date fixed." Similar views have been expressed by the apex Court in a case titled Muhammad Kabir Khan v. Mst. Anees Begum [2005 SCR 23] in which a relevant portion is reproduced as under:-- "'Sufficient Cause' as is laid down by all the superior Courts of Subcontinent is one which is beyond the control of a party

petitioner had not shown any cause for his non-appearance on the date fixed

Held: High Court was justified in rejecting the application for restoration of appeal."

6. In view of above quoted case law and reasons enlisted in preceding paras, the instant application, having no sufficient cause, is hereby dismissed and consigned to record with no order as to costs. SA/47/HC(AJ&K) Application dismissed.