1986 PLP 2609 (CLC)

Habibullah Samo for Petitioner. Muhammad Qaisar Qureshi for Respondent. This is an application under Order XLI, Rule 19, C.P.C. for restoration of appellant's application No.1964/1984 praying for re‑admission of the appeal which was dismissed for default on 10‑9‑1984. C.M.A. No. 1964/1984 was filed on 1‑10‑1984 and was dismissed on 24‑2‑1985 as the appellant and his Advocate were absent. Thereafter, the appellant filed present application (C.M.A.841/85) on 13‑5‑1985 which is supported by his affidavit in which he has stated that on 25‑1‑1985 his Advocate Mr. Ajibullah returned the file to him and told that he would not appeal as he had not paid his professional fee. He had informed him that the matter was fixed on 27‑1‑1985. On that date the appellant personally appeared in Court and at his request the hearing was adjourned. The application came up for hearing on 24‑2‑1985 but as the appellant and his Advocate were not present, it was dismissed. The appellant has stated in his affidavit that he is an illiterate person and is not aware of the procedure provided by law regarding fixation for date of hearing and as he could not engage any other counsel the matter was dismissed for non‑appearance as he was not aware of the date. He came to know of the proceedings on 6‑4‑1985 when the notice of execution application was served by the Controller. It seems that thereafter, he made enquiries and came to now about the dismissal of his application. During the course of argument on the last date of hearing Mr. Samo, Advocate undertook to produce the affidavit of Mr. Ajibullah Advocate and the same has been filed today. According to this affidavit he had returned the entire file to the appellant on 25‑1‑1985 and informed him about the next date namely 27‑1‑1985. Mr. Samo the learned counsel for the appellant has contended that the default was caused due to negligence and non‑appearance of the Advocate who had factually withdrawn from the case. The fact however, remains that as the appellant had appeared in person on 27‑1‑1985 and as he was also aware that his Advocate was not prepared to proceed with the matter either a proper application for withdraw of power should have been made so that the notice of the date of hearing should have been sent to the appellant directly or he should have made regular enquiry in the office of the High Court to find out the next date of hearing. After 27‑1‑1985 the appellant seems to have completely forgotten the matter. From his affidavit it is clear that he had not taken any step to prosecute his appeal and also to make proper arrangement for representing him in Court. It was on 6‑4‑1985 when a notice of execution application was served that he seems to have rushed to the Court. Mr. Qureshi, the learned counsel for the respondent has further pointed out that the past conduct of the appellant and his Advocate has not been bona fide in taking adjournment and they merely intended to delay the proceeding after obtaining the stay. He has pointed out that due to dilatory tactics, by order, dated 15‑3‑1984 the appellant was directed to be present personally and last adjournment was granted on that date. Thereafter, the appellant's Advocate sought adjournment and in the interest of justice the case was again adjourned. According to Mr. Qaiser Qureshi all these adjournments were obtained with a view to delay the proceeding. There may be some force in this contention but I do not think these facts fully relevant for the decision of this application. Whatever, the previous conduct may have been the most relevant factor for consideration is whether on 24‑2‑1985 the appellant and his Advocate remained absent due to sufficient cause. From the facts brought on record it is clear that the appellant and his Advocate have been negligent in prosecuting the application. In his affidavit appellant has stated that Mr. Habibullah Samo Advocate found out that on 10‑9‑1984 the appeal had been dismissed and his Advocate Mr. Ajibullah handing over the file did not inform him about this fact. However, from Application No. C.M.A. 1964/84 and its supporting affidavit it is clear that he was aware of the fact that appeal had been dismissed on 10‑9‑1984. Mr. Samo has contended that as the appellant's Advocate was not appearing, after personally appearing on 27‑1‑1985, he was under the impression that notice of the next date of hearing will be issued to him directly and it was due to this bona fide mistaken belief that he remained quite. This hardly justifies appellants absence. Mr. Ajibullah had not withdrawn his power and irrespective of the fact that he had returned the file, on record he was representing the appellant. Furthermore in these circumstances the appellant should have been vigilant and ought to have made inquiries from the office. After 27‑1‑1985 the appellant remained quiet and did not bother to make any inquiry although in the past he had been ordered to appear personally. The past history of the case was a sufficient pointer to the appellant to be more careful as the matter was being fixed for regular hearing from 8‑12‑1983. The conduct of the appellant and his Advocate to say the least was negligent. Mr. Qureshi the learned counsel for the respondent has relied upon P L D 1981 S C 200, 1980 S C M R 892 and PLD 1981 Kar.

645. The appellant and his Advocate were duty bound to be careful and attend the Court on the date of hearing. So long the power Vakalatnama is not withdrawn the Advocate is deemed to represent his client and it is his duty to appear on the date of hearing, unless discharged by the Court. In the present case the appellant and his Advocate were negligent and no sufficient cause for non‑appearance has been made out. In the circumstances the application is dismissed. Consequently, Application C.M.A. No. 1985/85 is also dismissed. The disputed premises is a shop, I, therefore, grant four months time from today, to the appellant, to hand over vacant possession to the respondent. In case he fails to do so, the writ of ejectment shall be issued without notice. H . B . T . Appeal dismissed.