P L D 2004 Lahore 486 (PLP)

Awan Muhammad Hanif Khan for Petitioners. Fazal‑e‑Milan Chowhan, Addl. A.‑G. The writ petition was dismissed for non‑prosecution on 6‑2‑1994 for the restoration whereof this application (Civil Miscellaneous No.1 of 2001) has been filed. Application (Civil Miscellaneous No.2 of 2001) has been filed under section 5 of the Limitation Act, 1908 for condoning the delay "if any". Both these applications have been contested by the respondent side by filing reply. It is contended by the learned counsel that after the unfortunate death of Mr. N. M. Tahir, Advocate the counsel engaged by the applicants were Mr. M. Anwar Sipra, Advocate and Messrs Kh. A.Tariq Rahim, Advocate and Associates whose names did not appear in the cause list when the petition was dismissed for non‑prosecution. It is contended that the applicants only learnt of the dismissal of the petition when their learned counsel inspected the file on 31‑1‑2001.

2. The contention has been considered in the light of the orders passed by the Court from time to time and the material on the record. It is correct to the extent that the petition was filed initially through Mr.N.M. Tahir, Advocate. It was dismissed for non‑prosecution on 8‑5‑1991. For the restoration of the same C.M.No.1185 of 1991 was filed through Mr. M. Anwar Sipra, Advocate on the ground that unfortunate death of Mr. N. M. Tahir, Advocate was the cause of non appearance in the matter. The said application was allowed on 21‑12‑1991 and the writ petition was restored. Be that as it may, Mr. M. Anwar Sipra, Advocate continued to represent the petitioners thereafter who failed to appear on 6‑2‑1994 when again the petition was dismissed for non‑prosecution. Long afterwards i.e. on 12‑4‑2001 present application (C.M.No.1 of 2001) filed through Messrs Kh. A.Tariq Rahim, Advocate and Associates and two days thereafter C.M. No.2 of 2001 under section 5 of the Limitation Act, 1908 was filed for condoning the delay. The respondent side has opposed the applications that a concocted story has been made in order to seek restoration of the petition which was sought after a long time during which period valuable rights had accrued in favour of the respondents. The record shows that Mr. M. Anwar Sipra, Advocate was the counsel at the relevant time after the death of Mr. N. M. Tahir, Advocate whose name had appeared in the cause list of 6‑2‑1994 when the petition was dismissed for non prosecution. The power of attorney on the record of the file shows that M/s. Kh.A.Tariq Rahim, Advocate and Associates were engaged on 31‑1‑2001 thus, there was no question of non‑printing of the name of Kh.A Tariq Rahim, Advocate in the cause list of 6‑2‑1994. Affidavit of Mr. Muhammad Ashraf, Advocate to depose that the name of M/s. Kh. A Tariq Rahim, Advocate and Associates did not appear in the cause list for 6‑2‑1994 is of no legal efficacy as M/s Kh. A Tariq Rahim, Advocate and Associates were not counsel at that time for the applicants. The case is of gross negligence and indolence on the part of the applicants as for a long time from the year 1994 till the year 2001 they failed to pursue the A matter or enquire about the fate thereof, by taking appropriate steps in the matter. Although it is urged that the law favours adjudication on merits vet the aspect of accruing valuable rights due to expiry of limitation in favour of the other side cannot be ignored and brushed aside. The law requires explanation for the delay of each day, which is lacking in this case. In view of the above no good cause has been made out for non appearance/non‑representation of the applicants on 6‑2‑1994 or for condoning the delay in the matter. In view of this the Court is not left with any option except to dismiss both these applications. N.H.Q./G‑22/L Applications dismissed.