P L D 1989 Supreme Court 371 (PLP)

MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought by the respondents' side in a writ petition which was originally dismissed for non‑prosecution but subsequently it has been restored by the High Court for regular hearing by accepting a review application filed by the respondents' side After the dismissal of the Writ Petition for non‑prosecution, the respondents' side failed to get it restored and their application for restoration was dismissed. Their petition for leave to appeal against the refusal by the High Court to restore was also dismissed by this Court with the observations that if so advised the High Court may again be approached for review of the original order of the dismissal of the Writ Petition for non‑prosecution. Such an application for review having been filed, the High Court has accepted the same and has, restored Writ Petition for hearing. The (respondents in, the writ petition) have now sought leave to‑ appeal. The impugned order passed by the High Court is based on the reassessment of the reason which led to the dismissal of the Writ. Petition for non‑ prosecution. It was on account of the non‑appearance of the learned counsel for the respondents at the time the Writ Petition was called out for hearing. He, at that time, was appearing before another Bench of the High Court and it was on account of a genuine wrong estimate of timings that the learned counsel failed to reach the Court in time where the present case was fixed‑‑ though he was present before another Bench of the Court. Learned counsel has raised two contentions "‑"One, that the review application was time barred, and secondly, it has been urged that the default of the learned counsel in making a wrong estimate of timings, should not have been condoned. The learned Judge in the High limitation separately prior to the consideration of the application for review on merits. And by an independent order accepted the said application filed from the respondents' side under section 5 of the Limitation Act and condoned the delay. After hearing the learned counsel for the petitioners we do not find any such error of law or principle which should justify the setting aside of the order of the High 'Court whereby the delay was condoned in its discretion under section 5 of the Limitation Act. The first argument of the learned counsel, therefore, fails. Recently this Court has ruled in a number of cases that where a learned counsel commits a genuine mistake in making estimate of time, for reaching a Court as a result of which the case gets disposed. of in his absence, depending upon the circumstances of each case, it would be good reason for recalling the order which was passed as a result of the counsel's absence. This view has also the support of two earlier cases 'Babu Jan Muhammad and others v. Dr. Abdul Ghafoor and others (P L D 1966 S.C.461) and 'Salamat Bibi and others v. Settlement and Rehabilitation Commissioner, Multan' (P L D 1966 S.C.467). In the present case after hearing the leaned counsel we are satisfied that the learned counsel for the respondents in the High Court had committed innocent mistake in making wrong estimate office timings. He was present in the Court premises but could not appear in this case on account of his appearance before another Bench.1 Accordingly this petition fails and leave to appeal, therefore is refused. M.B.A./S‑261/S Leave refused.