2004 PLP 870 (SCMR)

Laws Cited

Representation

• Khadim Nadim Malik, Advocate Supreme Court with Mahmudul Islam, Advocate‑on‑Record for Petitioners.
• Nemo for Respondents.
• Date of hearing: 11th July, 2002.
• ‑‑‑‑Arts. 199 & 185(3)‑‑‑Constitutional petition dismissed by High Court for non‑appearance of counsel‑‑‑Appointment of counsel as Additional Advocate‑General‑‑‑Constitutional petition was filed against the Provincial Government and due to absence of the counsel, the petition was dismissed‑‑‑Plea raised by the petitioners was that due to the appointment of the counsel as Additional Advocate‑General, he could not appear against the Provincial Government‑‑‑Validity‑‑‑Said appointment did not absolve the counsel from appearing before the High Court and apprise of his disability to appear on behalf of the petitioners and/or to intimate the petitioners through legal notice that he would no longer represent them before the Court of law‑‑‑Both the options available to the counsel were not availed of‑‑‑High Court had rightly non‑suited the petitioners‑‑‑Leave to appeal was refused.
• 2. Grounds urged for restoration of the petition before the learned Judge in Chambers of the High Court were firstly, that Mr. Khadim Nadim Malik, Advocate for the petitioner (since deceased) had been appointed as Additional Advocate‑General, Punjab and was, thus, not available to appear in the Court; secondly, that petitioner‑Muhammad Sharif died somewhere in 1991 whereas his legal heirs were not aware of the fixation of the writ petition and thirdly, that the condition, subject to which the writ petition had been admitted for regular hearing had been duly complied with by the petitioner. Learned Judge in the High Court was not impressed by any of these submissions and dismissed the application for restoration of the writ petition vide order impugned in this petition.
• 3. We have heard learned counsel for the petitioner at quite some length and gone through the available record as well as the impugned judgment. There is no denial of the fact that writ petition against the order of the Member (Colonies), Board of Revenue, Punjab had been pending before the High Court since 1982. After the death of the petitioner in 1991, it was incumbent and imperative upon his legal heirs to move an application for impleadment of his legal heirs in his place. Admittedly, this was not done till the dismissal of the petition on 18‑10‑1999. This is a serious lapse on the part of deceased‑petitioner's legal heirs, who now seek leave to appeal against the impugned order. The ground that Mr. Khadim Nadim Malik had been appointed as an Additional Advocate‑General and, therefore, could not appear in a petition against Government of Punjab, may be a valid argument per se but it does not absolve the learned counsel from appearing before the Court and apprise of his disability to appear on behalf of the petitioners and/or to intimate the petitioners through a legal notice that he would no longer represent them before the Court of law. Both the options, though available to the learned counsel, were not availed of, therefore, High Court was right in non‑suiting the petitioners on this account as well.
• 4. We are equally not moved by the submission of the learned counsel that condition, subject to which the petition had been admitted for regular hearing, had been complied with. According to the learned counsel a sum of Rs.21,063, as directed by the Court had been deposited in the Government treasury on 11‑11‑1982. Petitioners should have brought this fact to the notice of the learned Judge, which obviously was not done. Even in this petition, filed more than 2‑1/2 years ago, copy of challan of the deposit of the amount has not been placed in the paper book for our satisfaction, which again is a lapse on the part of learned Advocate‑on‑Record and the Advocate Supreme Court, who drafted this petition. Lastly, copy of the conditional order admitting the writ petition, has not been placed on record, which is hardly fair. In this case, learned counsel for petitioner and after, the death of the petitioner, his L.Rs. had demonstrated an attitude of total indifference and neglect of duty on their part. In case, application for restoration was filed in time, it was without any merit and substance.

Headnotes / Summary

Judgment & Decree