1990 PLP 1025 (SCMR)

‑‑‑‑O.XLI, Rr. 17 & 19‑‑‑Constitution of Pakistan (1973), Arts. 185(3)‑‑‑Dismissal of appeal in default‑‑‑Application for restoration of appeal having been made on the same day alongwith counsel's affidavit explaining cause of non‑appearance, appeal was restored‑‑‑Revision against restoration of appeal dismissed‑‑‑Leave to appeal‑‑‑Petitioner's contention was that there was no evidence before the Appellate Court, on basis of which it could hold that non‑appearance of party or its counsel at the time when the appeal was called for hearing was unintentional and that affidavit submitted by counsel in support of application for restoration could not be treated as evidence‑‑‑Held, there was no reason why the Appellate Court could not take into account affidavit filed by present respondent's counsel wherein he had detailed the reasons for his absence from the Court at the time when appeal was called for hearing‑‑‑Although one of the respondents did rile a counter‑affidavit the Appellate Court was competent to act on the affidavit of counsel in preference to that submitted on behalf of petitioners, particularly, when application for restoration was made on the very day when appeal was dismissed‑‑‑Petition dismissed. Ch. Khalilur Rahman Advocate Supreme Court with Haji Ghias Muhammad, Advocate Supreme Court and Syed Abdul Aasim Jafery, Advocate- on‑Record for Petitioners. Date of hearing: 25th November, 1989. SAAD SAOOD JAN, J.‑‑On 20‑10‑1984 an appeal preferred by the respondents from the judgment and decree of the trial Court in a partition suit was dismissed by the District Judge, Sahiwal for want of prosecution. On that very day counsel for the respondents filed an application, supported by his own affidavit, for restoration of the appeal. He stated in the application that the appeal had been listed in the cause list of that day at serial No.

19. As it was fairly low in the list, he became busy with the other engagements in the Courts. He went to the Court of the District Judge at 10‑30 a.m. when he found that the appeal had been kept in. On this he left the Court again. When he returned at 11‑30 a.m., he found that the appeal had been dismissed in default. 2: The application for restoration was resisted by the petitioners. The learned District Judge found that satisfactory cause had been shown for the restoration of the appeal; accordingly, he set aside the order of dismissal and restored the appeal. The petitioners riled a revision petition in the High Court to call in question the order of restoration but it was dismissed. They now seek leave to appeal from this Court.

3. In support of this petition it is contended that there was no evidence before the District Judge on the basis of which he could hold that the non appearance of the respondents and their counsel at the time when the appeal was called for hearing was unintentional and that the affidavit submitted by counsel in support of the application for restoration could not be treated as evidence for that purpose. In this context reliance has been placed upon Federal India Assurance Co. v. Anandrao Pandurangrao Dixit AIR 1944 Nagpur 161, Gooru Narayana and another v. Vaikuntam Chinna Lakshmayya AIR 1939 Mad. 927 and Syed Modaris Ali v. Syed M. 11yas Ali PLD 1971 Dacca

309. It is to be noticed that the view taken in the case of the Federal Indian Assurance Co. was overruled by a Division Bench of the Nagpur High Court in Kanhaiyalal v. Mehgraj AIR 1954 Nagpur 260 while the other two cases are easily distinguishable on facts. We see no reason why the learned District Judge could not take into account the affidavit filed by the respondents' counsel wherein he had detailed the reasons for his absence from the Court at the time when the appeal was called for hearing: No doubt one of the respondents did file a counter‑affidavit but then the learned District Judge was competent to act on the affidavit of counsel for the respondents in preference to that submitted on behalf of the petitioners, particularly, in view of the fact that the application for restoration was made on the very day when the appeal was dismissed. There is no merit in this petition which is hereby dismissed. A.A./Z‑95/S Petition dismissed.