2017 PLP 1727 (CLC)

Laws Cited

Representation

• Naeem Suleman for Petitioners.
• NAZAR AKBAR, J.--- The Petitioner through listed application seeks restoration of the petition which was dismissed for non-prosecution on 27-10-2015. By order dated 21.10.2015 the learned counsel for the petitioner was warned that this petition will be dismissed with cost if he fails to proceed with the case on 27.10.2015. On 27.10.2015 when this case was called at the time fixed in the earlier order, learned counsel for the petitioner was absent therefore it was kept aside and again taken up at 1:00 p.m. Even at 1:00 p.m. he did not turn up and send Mr. Kashan, advocate to hold brief.
• 3. The Petitioner has not even deposited the cost imposed by the court and has filed restoration application. Not a single application for urgent hearing was filed with the application for restoration of this petition. The counsel even after filing of restoration application remained absent and out of three, on two occasions brief was held by different advocates as was his practice since 12.12.2008. Even the restoration application appears to be a formality just to lingering on the case pending since 2004. The learned counsel in his affidavit has declared that the observation of the Court in the order dated 27.10.2015 regarding his conduct and performance as an advocate between 12.12.2008 and 27.10.2015 has no relevance. The observation of this Court, which he finds irrelevant, is reproduced below:-
• "This petition is pending since 2004. Mr. Naeem Suleman, advocate filed his power on behalf of the petitioner on 26.11.2008 but he never appeared in Court. On 12.12.2008 none was present for the parties. On 31.01.2009 none was present for petitioner. On 27.3.2009 brief held on behalf of the petitioner's counsel. On 24.4.2013, 13.10.2009, 29.8.2013, 24.10.2014, 13.2.2014 and 06.8.2014 none was present on behalf of the petitioner. On 21.10.2015 at the request of learned counsel for the petitioner matter was adjourned to today (27.10.2015) and time was fixed as at 11.00 a.m. with a note of caution that if learned counsel for the petitioner fails to attend or satisfy the Court about the maintainability of this petition against remand order this petition will be dismissed with cost."
• 4. Now I would like to examine "sufficient cause" or "good cause" for not appreciating the consequences of order dated 21.10.2015 and also for absence on the fateful day i.e. 27.10.2015. The counsel with his affidavit has also filed copy of an order dated 27.10.2016 in Suit No.1997 of 2015 to show his engagement in another Court. The perusal of said order shows that in that case two advocates had appeared on behalf of the plaintiff one was Mr. Naeem Suleman and other was Mr. Arshad. The short order of hardly one and half page does not appear to have consumed the whole day of the learned counsel. He has not disclosed his engagement in any other case except the one mentioned above. The reliance placed by the learned counsel on the case-law reported as PLD 1996 Karachi 365 to emphasise that the affidavit filed by him being an affidavit of an advocate carries sanctity to be treated as a "sufficient cause" is misconceived. The conduct of the learned counsel since 2008 when he filed power in this case and reflected in the various orders branded as irrelevant by the counsel including the one reproduced above disqualifies the counsel to claim any "sanctity" to be attached to his affidavit. An affidavit of an advocate for the purpose of showing "sufficient cause" for restoration of a lis dismissed for non-prosecution as explanation for his absence on a particular date is not enough. The Petitioner and his counsel have to show whether their conduct or the conduct of the counsel was fair and he was honestly vigilant. The judgment relied upon by the learned counsel dates back to 1996 and it was delivered by a single bench of this Court. Unfortunately, the learned counsel is not even up-to-date on the case law developed by this Court on the question of sanctity to be attached to the affidavit of a counsel seeking restoration of a case dismissed in non-prosecution. During the last 20 years in several cases this Court has held that the personal affidavit of an advocate is not enough to grant the relief sought on the basis of personal affidavit. In this context two Division Benches of this Court in the cases titled Mst. Haleema Tahir and 5 others v. Mst. Naheed Ijaz and 3 others (2010 MLD 554) and Muhammad Feroz Punjani v. Syed Badshah Hussain (PLD 2014 Sindh 70) have refused to restore the lis dismissed for non-prosecution despite the fact that the applications were accompanied with personal affidavit of a counsel representing the defaulting party. In the last mentioned case of division bench, which is most recent, my brother Muhammad Junaid Ghaffar, J who authored the judgment for the Division Bench, has referred to several judgments on the subject including the other cited case law and observed as follows:-
• "The main thrust of the arguments put forward by the learned counsel for the appellant is based on only one premise, and that is, since a personal affidavit has been filed in support of the restoration application, no further deliberation was required in the matter. Although, barring exceptional circumstances, it is a settled law that a restoration application supported by a personal affidavit of an advocate has attached to it, its own credence, but again this is not, and could not be the only reason to grant each and every application for restoration. It is to be seen as well as examined, by the court that whether the conduct of the counsel who has submitted his personal affidavit has been fair, and, or whether the counsel has been vigilant enough to pursue its case in a manner, as is required before this Court. As would be noticed from the discussion above and perusal of the order sheets, the learned counsel for the appellant in this matter, has not taken due care and has not been vigilant enough to pursue this appeal after its admission on the first date of hearing." (Emphasis is provided)

Headnotes / Summary

Judgment & Decree