1985 PLP 201 (MLD)

Date of hearing: 15th April, 1985. This writ petition is directed against the order of a notified officer, dated 25-8-1973 who dismissed the Mukhbari application of the petitioners for default of appearance after, reciting that the case has been called out thrice and the petitioner Wazir Khan appeared to have no interest in prosecuting his case.

2. On the same (lay, the two learned counsel who were to appear for the petitioners immediately moved an application for restoration supported by an affidavit. This assertion is supported by affidavit of the writ petitioner

3. The application for restoration was by the notified officer by his order, dated 31-10-1973. It was further found that the case of petitioners was called thrice, but the petitioners or their counsel failed to attend while counsel for respondents was present all the time. The petitioners had to produce evidence on that day. They did not appear themselves nor they produced any evidence and thus the petition was dismissed in default.

4. The sole reason given by the notified officer for non-restoration is that if such like petitions are allowed, there would be no end to such applications. There was thus found no sufficient ground for restoration of the original petition.

5. Respondents were sent registered post-cards for today's hearing. Case has been called out several times throughout the day, but nobody turned up. The respondents are thus, proceeded ex parte.

6. The reasons given by the notified officer that "if such petitions are allowed, there would be no end to such applications" in my view, is an irrelevant consideration. This was a case in which the petition was dismissed on 25-8-1973 for default of appearance and on the same day a little later the petitioners and their two learned counsel applied for recall of the order and restoration of the petition which was also supported by an affidavit. This. is a material circumstance which the Courts ought to have taken into consideration for setting aside the order dismissing the case in default. The normal practice of the Courts is that in such a situation even on oral request made by the learned counsel who is late or his client arrives late is given due weight for consideration for the purpose of determination of sufficient cause. The impugned order do not even show consciousness on. the part of two officers about the peculiar facts of this case. The Courts below accordingly have failed to objectively address themselves to the question of sufficient cause for restoration. In view of what has been stated above, the writ petition is accepted and the case is remitted to the appropriate notified officer for disposal of the application of the petitioners for restoration strictly in accordance with taw while keeping in view the law laid down by the superior Courts in that behalf. Since nor, has turned up on Behalf of respondents to contest the proceedings, there shall be no order as to costs. H . B. T . Petition accepted.