1989 PLP 951 (MLD)

4.That I say that another appeal which was titled as FRA No.606 of 1984 Habibur Rehman v. Ziauddin Ahmad was compromised between the parties and I was under the impression that this matter has been compromised and as such this was a bona fide mistake on my part that I made statement believing that this case has been compromised between the parties. 5.That I say that my above statement was neither deliberate nor intentional but was due to the fact mentioned above. 6.That I say that the appellant repeatedly inquired about this appeal and finally when I contacted the office I came to know that I have made above mentioned statement and as such the appeal was dismissed and withdrawn". The respondent resisted the application and filed counter‑affidavit and denied various allegations made therein. From the perusal of the diary for 19‑8‑1984 it shows that the counsel for the appellant appeared and stated that he did not wish to press this appeal and thus was aware of the dismissal of the appeal. The appellant did not appear on 19‑8‑1984 nor showed any cause for his absence. The appellant did not file his affidavit in support of the application. I have perused the contents of para 6 of the affidavit and find the same are vague. Engagement of a counsel to appear on behalf of the litigant does not absolve him of his responsibility. The litigant is also under duty to see that his matter is properly and diligently being prosecuted. The appellant was himself negligent in not keeping in touch with his counsel and has to thank himself. Mr. Kadir Bukhsh Bhutto has submitted that the appellant did compromise the matter with the respondent outside the Court. His submission is that the statement made by the counsel for the appellant in this regard on 19‑8‑1984 was not an impression but it was the fact. It is an admitted position that the appeal was not admitted but was fixed for admission and the learned counsel for the appellant was aware that the appeal was dismissed on the basis of his statement. In this view of the matter the question of making inquiries does not arise. The contents of para 6 are vague and the detail of inquiries was not given. In the case of Bashir Ahmad etc. v. Settlement and Rehabilitation Commissioner 1982 SCMR 188 the Hon'ble Supreme Court observed that:‑ "In showing an indulgence, in exercising a discretionary power and in affording relief in such matters the Court was well justified to see to the conduct of the petitioners in diligently pursuing the case before the Court. If there was material to establish that the conduct of the petitioners was wanting and deficient the discretion could as well be exercised against them". In the case of Zulfiqar Ali v. Lal Din and another 1974 SCMR 162 the Hon'ble Supreme Court observed as under:‑ "The mere fact that a litigant has engaged a counsel to appear on his behalf does not absolve him of all responsibility. It was as much his duty as that of the learned counsel engaged by him to see that the appeal was properly and diligently prosecuted. If he engaged a counsel who was lacking m his sense of responsibility to the Court, it is he who should suffer and not the other side". Similar view was taken in the case of Chiragh Din reported in 1976 SCMR

399. I am bound to follow the principles laid down by the Hon'ble Supreme Court in the above cases. The appellant was himself negligent in not keeping in touch with his counsel. It seems that his counsel was ‑ not under the wrong impression. For the above reasons, I find no force in this application which is dismissed. In the circumstances of the case the parties will bear their own costs. H.B.T./A‑476/K Application dismissed.