2008 PLP 1631 (CLC)

Laws Cited

Representation

• M. Tabassum Aftab Alvi for Petitioner.
• KHAWAJA MUHAMMAD SAEED, C.J.--- Supra titled petition for leave to appeal was filed on behalf of petitioner by Sardar Muhammad Nazar Khan, Advocate, on 15-11-2005. The same was fixed for arguments on 20-12-2005 when it was dismissed for want of prosecution in presence of respondent No.8. An 'application for its restoration was moved on 19-1-2006 by the learned Advocate for the petitioner on the ground that he was advised bed rest by the doctor as such he sent an application for adjournment which was received in the Registry Office after passing of order of dismissal of petition for leave to appeal. According to him on account of serious sickness he was unable to attend the Court for arguments on 20-12-2005 as such the petition for leave to appeal be restored at its original number.
• 2. In response to notice of the Court, respondent No.8 appeared on 28-2-2006 before the Court and also filed his objections in which he seriously contested the averments of application moved for restoration of petition for leave to appeal. According to him, the learned Advocate was not ill on 20-12-2005; rather he remained present before the Courts at Rawalakot on the said date. In support of his objections he has filed attested copies of interim orders passed by the Civil Judge and Additional District Judge, Rawalakot on 20-12-2005 and Vakalatnama which was filed by Sardar Nazar Muhammad Khan on the aforesaid date before another Court. The respondent requested that more proof shall be presented later on. Sardar Nazar Muhammad Khan, the learned counsel for the petitioner, also wanted to lead evidence in support of grounds of his application. Therefore, on 28-2-2006 the case was sent to Registry Office for recording evidence for and against the respective claims of the parties. The learned Advocate got his statement recorded on 26-6-2006 in which he was confronted by respondent No.8 about his presence before the lower Courts at Rawalakot. Upon confrontation he stated that it is not correct that he appeared on 20-12-2005 in any of the following cases:---
• 3. Sardar Muhammad Nasim Khan, respondent No.8, has given a detailed statement in which he has stated that the petitioner is facing a civil suit for recovery of Rs.87,500 in which decision has been given against him. The petitioner moved an application before the Deputy Commissioner Poonch to deposit the aforementioned Government amount in instalments and has already deposited Rs.5,000 before the Recovery Officer. The petitioner who had filed suit to defend the recovery of Rs.87,500 has admitted the claim of department and has deposited some amount with the recovery officer with the promise that the remaining amount shall be deposited by him through instalments. It was further stated by him that even though on 20-12-2005 Sardar Muhammad Nazar Khan was shown present before the Courts of law established at Rawalakot but the petitioner himself has not given any explanation as to why he failed to appear before this Court at Muzaffarabad when his case was taken up for hearing. He submitted that no sufficient cause has been disclosed to justify the absence of petitioner or his counsel before the Court on 20-12-2005 when the petition was fixed for arguments. The petition for leave to appeal was filed just for delaying the recovery process, therefore, instead of sending application through fax, the same was sent through mail which was not received in the Registry Office of this Court in time. He further stated that the learned Advocate was not suffering from any .serious ailment. Therefore, even his absence is not justified in law. A false case has been filed by the petitioner in order to prolong the same, he is dragging him in the Courts of law. The respondent has requested that as no sufficient cause has been disclosed by the petitioner or his counsel in the instant application, therefore, the petition for leave to appeal may not be restored.
• 4. In the instant application the petitioner engaged another counsel Mr. M. Tabassum Aftab Alvi, Advocate, who put up his presence before this Court on 30-5-2006. However, he filed Vakalatnama on behalf of petitioner on 18-7-2006 and the case was adjourned to next date. Finally the arguments were heard on the instant application on 22-8-2006.
• 5. I have considered the respective arguments of the learned counsel for the petitioner and that of respondent No.8 and have gone through the record of the case. Sardar Nazar Muhammad Khan, Advocate, who had been prosecuting the petition for leave to appeal on behalf of petitioner has been shown present on 20-12-2005 before different Courts established at Rawalakot. The petition for leave to appeal was dismissed by this Court in default of appearance on the said date. The petitioner has not disclosed any cause for his own absence before the Court on 20-12-2005. Even if the presence of the learned Advocate for the petitioner is executed on the ground of illness, no reason is available to excuse the absence of petitioner before this Court on 20-12-2005. In my view, there is no justification to restore the petition for leave to appeal as no sufficient cause has been disclosed and proved on the petitioner's side for its restoration. It must be remembered that the petition dismissed in default of appearance cannot be restored by a Court of law subsequently in routine. The same can be restored only if a cause beyond the control of a party is disclosed in the application moved for its restoration. No such cause is shown in the present application.
• (i) No order adverse to any of the party shall be passed on the fixed dates in the cases if any of the parties does not appear. The office shall communicate the next date to both the parties/their Advocates. This arrangement shall continue till normalcy or March 30, 2006, whichever is earlier...."
• This order has been passed for the convenience of such parties who were not present before the Court. The intent and basic purpose of the order was to facilitate such parties who were not aware of the dates of hearing. The petition for leave to appeal was filed in this Court on 15-11-2005, after the disastrous earthquake. The case was being contested from the other side. In presence of Sardar Muhammad Nazar Khan, Advocate an order of status quo was passed in favour of petitioner on 22-11-2005 and the case was posted for 8-12-2005. On this date the petition for leave to appeal was fixed for arguments to 20-12-2005 in presence of said Advocate. The petitioner and his counsel were thus, conscious of the date of hearing. Therefore, keeping in view the peculiar facts and circumstances of the instant case, the petitioner cannot be benefited of the fruits of order dated 7-11-2005. Even otherwise this point was not taken in the application moved for restoration of petition for leave to appeal, as rightly pointed out by respondent No.8.

Headnotes / Summary

Judgment & Decree