2001 PLP 590 (YLR)

Syed Kazim Bukhari for Petitioner This order will dispose of an application under section 151, C.P.C., filed by the revision petitioner on 2-5-2001, seeking restoration of the revision petition, which was dismissed for non-prosecution on 13-10-2000.

2. The brief facts of the case in hand are that the petitioner filed a suit for permanent injunction against the respondents, wherein the learned Civil Judge rejected the plaint vide judgment and decree, dated 14-7-1987, which was assailed by the petitioner by way of filing an appeal, which too was dismissed by the learned Additional District Judge vide judgment, dated 20-10-1987. Dis-satisfied with the aforesaid judgments and decrees, the petitioner preferred the present revision petition, which was admitted to regular hearing. Perusal of the record shows that on 28-5-1999, nobody represented the petitioner, again on 7-7-1999 and 28-7-1999, another learned counsel in place of the original counsel appeared and the case was adjourned. Whereafter on 13-10-2000, as neither the petitioner nor his learned counsel were present, therefore, on the said date the revision petition was dismissed for non-prosecution, hence the present application for the restoration of the revision petition has been filed after the lapse of'6 months and 20 days.

3. It has been asserted in the application in hand that the revision petition was fixed for 28-7-1999 and it was adjourned to the first week of November, 1999, but instead thereof it was fixed on 13-10-2000 and that the learned counsel of the petitioner, namely, Muhammad Nawaz Kasuri, Advocate, was out of city and his clerk did not receive any intimation about the fixation of the revision petition for 13-10-2000. It has been averred that due to lack of information to the learned counsel as well as his clerk about the fixation of the case, they could not appear, resulting in the dismissal of the revision petition. According to the petitioner absence of the counsel, his clerk and the petitioner was not wilful, but on account of the non-receipt of the notices, which constitutes "sufficient cause" for the restoration of the revision petition.

4. I have heard the learned counsel for the petitioner. While reiterating the contents of the present application, the learned counsel of the petitioner contended that the dismissal of the revision petition was resulted on account of the lack of service of notice, which ought to have been served and the confusion was created on account of the material fact that- the case was adjourned to the first week of November, 1999, but instead thereof it was fixed on 13-10-2000, therefore, the learned counsel, namely, Mr. Muhammad Nawaz Kasuri, Advocate, who was out of city, could not appear and the petitioner was also unable to appear on the said date.

5. In order to resolve the controversy and to verify about the correctness of the contents of the application, I have perused the cause list, dated 13-10-2000, of the Court of my learned brother Ali Nawaz Chowhan, J. It is evident from the cause list that the revision petition was fixed at S. No.9 of the cause list, wherein the name of the erstwhile learned counsel, namely, Mr. Muhammad Nawaz Kasuri, Advocate, was duly published. The said cause list was also shown to the learned counsel of the petitioner. It is sufficient service. In view of this, the argument regarding 'the non-service of the notice especially to the learned counsel of the petitioner falls to the ground. Moreover, the learned counsel, about whom it has been stated that he has not received any intimation and was allegedly out of city has not filed any affidavit in support of the contents of the application.

6. When the learned counsel was confronted with the aforesaid facts, he tried to unsuccessfully argue that the revision petition was dismissed on account of the negligence of the erstwhile learned counsel and that the petitioner should not be made to suffer for the negligence of his counsel/Advocate, This argument of the learned counsel regarding the negligence of the previous learned counsel has equally no force and can be dislodged on many counts, Firstly, it has not even been averred in the instant application that on account of negligent attitude of the learned counsel of the petitioner, the dismissal was caused. It is established law that the facts not raised in the pleadings cannot be argued. Suffice it to say that this contention of the learned counsel can simply be repelled in view of the maxim "secundum-allegata-et-probata". Secondly, no "sufficient cause" for the non-appearance of the petitioner and his learned counsel has at all been shown in the contents of the application, whereas under the law "sufficient cause" for non-appearance/ absence of the party as well as his learned counsel has to be adequately and sufficiently established within the parameters set-up under the law. In the instant case no "sufficient cause" for non- appearance of the learned counsel, namely, Mr. Muhammad Nawaz Kasuri, Advocate, has been shown, who has not even filed his affidavit in support of the present application. Only the clerk of the learned counsel has filed his affidavit, which is neither here nor there. It has been held by the superior Courts of Pakistan that in a case counsel is engaged for conducting the same the party will have to explain his absence adequately and 'sufficiently wi4hin the parameters of law.

7. In arriving the above conclusions I am fortified by the ample case-law, the resume of which is given hereunder: It has been held by the Hon'ble Supreme Court in a case reported as Mst. Taj Begum and another v. Sultan Khan and 12 others (1968 SCMR 193) that if an appeal is dismissed for default due to gross negligence of the learned counsel, aggrieved client should seek redress from his counsel and not harass the opposite party. Similarly it has been held in Muhammad Sharif Khan and 4 others v. Board of Revenue, West Pakistan, Lahore and another (1970 SCMR 76) that even if counsel was at fault other side could not be deprived of valuable right accruing by lapse of time and that despite the engagement of counsel client is not absolved of his duty of keeping in touch with progress of his case. It has been held in Zulfiqar Ali v. Lal Din and another (1974 SCMR 162) that mere engagement of counsel does not absolve litigant of all responsibilities and the party as well as counsel are both responsible to see that the causes are prosecuted diligently and if the counsel engaged in lacking in his attitude then the opposite party cannot be made to suffer on that account. Similar view has been taken by Hon'ble Supreme Court in a case reported as Abdul Shahid and another v. Sh. Azim Bakhsh (PLD 1981 SC 200). It has been held in Muhammad Shafi v. Mst. Razia Ghafoor and 3 others (1989 SCMR 479) that the grievance of the petitioner was confined to the conduct shown by the learned counsel in proceedings resulting in judgment and decree against his client, such a breach of confidence, would not justify the reopening of the causes affecting other persons. The aforesaid views are further reinforced from the judgments of the Hon'ble Supreme Court reported as Rafiq Ahmad Khawaja v. Abdul Haleem (1982 SCMR 1229), Safiullah Siddiqui v. Karachi Electric Supply Corporation Limited (1997 SCMR 926) and Saeed Ahmad v. Additional District Judge, Rawalpindi and 8 others (1997 MLD 175).

8. One more aspect of the case, which cannot be ignored under the circumstances is that the revision petition was dismissed on 13-10-2000, whereas the present application was filed on 2-5-2001, i.e. after the lapse of 6 months and 20 days, which is extremely belated and is barred by time. Moreover, interestingly even no application seeking condonation of delay has been filed by the petitioner, whereas the provisions of section 5 of the Limitation Act, 1908, have been added by Ordinance X of 1980 to Order IX, Rule 9, C.P.C. and made applicable to Order XLI, Rule 19, C.P.C. through Act IV of 1990. The attitude of the petitioner appears to be negligent and casual. In view of the above discussion no "sufficient cause" for non-appearance/absence of either the learned counsel of the petitioner or the petitioner on 13-10-2000, when the revision petition was dismissed for non-prosecution, has been shown within the parameters laid down by the superior Courts of Pakistan, therefore, no case for the restoration of the revision petition is made out by the petitioner. Resultantly, the instant application is hereby dismissed with no order as to costs. With the dismissal of the aforesaid Civil Misc. Application C.M. No.2-C of 2001 also stands dismissed. M.B.A./N-82.L Application dismissed.