1997 PLP 738 (CLC)

‑‑‑‑S. 151‑‑‑Dismissal of suit for non‑prosecution‑‑‑Application for restoration of suit on ground that office had wrongly fixed case for evidence, when in fact such case should have been fixed for orders on application‑‑‑Material on record clearly indicated that suit was not dismissed for gross negligence of party or its counsel but due to error of office which had fixed case for evidence instead of placing the same for order on application‑‑‑Non‑appearance of counsel or parties could thus, have resulted in dismissal of application and not the suit‑‑‑Suit was restored in circumstances. Joint Secretary, Ministry of Religious and Minority Affairs v. Mubina Begum 1985 CLC 231 ref. Muzaffar‑ul‑Haq for Plaintiff. Ghulam Murtaza Malik for one of the Legal Heirs of Defendant No.

1. Through this application defendant is seeking restoration of his suit dismissed for non‑prosecution on 22‑2‑1993, on the grounds that Office has wrongly fixed this case for evidence, when in fact this case should have been fixed for orders on his Applications bearing Nos.C.M.A. 686/93 filed on 1‑2‑1993 and C.M.A. 687/93 filed on the same date. In these two applications the plaintiffs have prayed for bringing legal heirs of defendant No.l on record and substitution of legal heir of defendant No.4. The order dated 22‑2‑1993 shows that one of the grounds for dismissal of suit was that the plaintiff had failed to file necessary application to implead legal heirs of the defendant No.4. I have scrutinised the case file and it appears that both these applications are available on record with the Office remarks "filed on 1‑2‑1993". But the office has not processed these applications till todate. This shows that prior to the date of dismissal these applications were filed. Office has not raised any objections on the applications. Therefore, on 22‑2‑1993 these applications should have been fixed for orders. In such view of the fact, there was no need of the plaintiff or his witness to be present in Court. Mr. Ghulam Murtaza, Advocate has vehemently urged that the cause shown by the plaintiff for restoration is not sufficient as he has not explained his and his counsel's absence on 22‑2‑1993. Neither Advocate for the plaintiff has filed his personal affidavit to this effect. He has relied upon 1985 CLC 231 (Joint Secretary, Ministry of Religious and Minority Affairs v Mubina Begum) to support his contention that where suit is dismissed or an ex parte order is passed due to the gross negligence of the party or his Advocate, the same is neither entitled to be restored nor for setting aside. In this reported case it was held by Division Bench of this Court after considering several case‑laws that the matter if dismissed for default can be restored or an ex parte decree is entitled to be set aside even without payment of costs if there is no negligence of the party and its counsel. Such restoration or setting aside may also be done upon payment of costs. In the said reported case it was further held that if their is unintentional negligence of the party or its counsel; then the restoration can be done after imposing costs. And finally it was held by the said Division Bench that in case if it is dismissed or an ex parte order is passed due to the gross negligence of the party or its counsel then the same is not entitled to be restored or to be set aside. In the present circumstances of this case, I am satisfied that it is not the gross negligence of the party or its counsel but due to error of this office that this case was fixed for evidence instead of placing the same for orders on CMA‑686/93 and CMA‑687/93. Non‑appearance of the counsel for the plaintiff on 22‑2‑1993 could thus have resulted in dismissal of these two applications and not the suit. Mr. Ghulam Murtaza has also raised objection vide paras. 4 and 5 of his counter‑affidavit which in facts-touches the merits of the case. He will be entitled to raise such objections at the time of hearing of the other two applications. For the reasons mentioned hereinabove C.M.A.‑2620 of 1993 is granted and the suit is restored to its original number. A.A./Y‑3/K Suit restored.