2017 PLP 1157 (MLD)

CH. MUHAMMAD IBRAHIM ZIA, J.

This appeal by leave of the Court is addressed against the order of the High Court dated 30.1.2010 whereby application for restoration of appeal titled Muhammad Iqbal and another v. Munir Hussain and others, has been dismissed.

2. Necessary facts giving rise to this appeal are that the appeal titled Muhammad Iqbal and another v. Munir Hussain and others was fixed for hearing before the High Court on 6.10.2009. According to appellant's version, the counsel for appellants was engaged in other Courts at the time of calling the case, he went to inform the counsel but till he returns along with his counsel, the case had already been dismissed for non-prosecution. The appellants filed an application for restoration of the case which is supported by an unrebutted affidavit. The High Court, through the impugned order, dismissed the application, hence, this appeal.

3. Ch. Muhammad Ilyas Advocate, the learned counsel for the appellants submitted that the impugned order of the High Court has not advanced any interest of justice rather resulted into miscarriage of justice. The appeal was dismissed for non-prosecution on 6.10.2009. The appellants promptly applied for certified copy of the order which was issued on 4.11.2009 and on the very next day i.e. 5.11.2009, application for restoration of appeal was filed. It is further submitted that sufficient cause for non-appearance has been stated in the application and affidavit of the appellant duly sworn in was also filed but the High Court has taken very harsh decision while rejecting the application. He submitted that according to modern trend of the superior Courts, adjudication on merits is preferred rather than knocking out the litigants on the technical grounds. It is further submitted that ordinarily, engagement of counsel in other Courts at the time of calling the case is treated as sufficient cause, therefore, for the ends of justice, while vacating the impugned order, the appeal be restored.

4. Conversely, Mr. Abdus Salam Chaudhry, Advocate the learned counsel for respondents strongly opposed the impugned order on the ground that the same is quite in accordance with the law and principles of justice. The conduct of appellants also prove that they are negligent. Although they have filed the application for restoration of appeal within time but while approaching the High Court have spent a lot of time which speaks of their carelessness. It is further submitted that the cause mentioned in the application does not fall within the definition of sufficient cause, hence, the appeal is not maintainable.

5. We have paid our utmost attention to the respective arguments of learned counsel for the parties and also perused the record made available. According to record, the appellants applied on 9.10.2009 for certified copy of the order which was issued on 4.11.2009 and on the very next day i.e. 5.11.2009, the application for restoration has been filed. This conduct of the appellants shows that they have vigilantly prosecuted their case. The application is supported by personal affidavit of the appellant wherein it has been deposed that at the time of calling the case, he went to inform his counsel who was busy before the other Courts. When he along with counsel returned, the order of dismissal of appeal had already been announced by the Court. No counter affidavit or objections have been filed by the respondents despite availing opportunity. Thus, it is clear that the affidavit filed by appellants remained un-rebutted. Ordinarily, the un-rebutted affidavits in such like cases are believed and treated as sufficient proof of the stated fact. Thus, the reason advanced in the application in the light of un-rebutted affidavit, on the face of it will be treated as correct. Our this view stands fortified from the cases reported as Muhammad Sharif Khan v. Mirza Fazal Hussain and others, [1993 SCR 88] and Public Health Engineering Division and another v. Aurangzeb Khan, [2008 SCR 590].

6. The other aspect of the matter that whether the reason advanced by the appellants is sufficient or not, needs hardly any deliberation. There is consensus of the Courts is relating to the engagement of counsel before other Courts is always treated as sufficient cause for non-appearance. Our this view finds support from the case reported as Salamat Bibi and others v. Settlement and Rehabilitation Commissioner Multan [PLD 1986 SC 467(sic)], in which at the time of calling of the case before the Court, counsel was busy before the other Court. The apex Court of Pakistan has observed as follows:-- "Both of these were cases in which the counsel's non-appearance was due to the fact that he was at the relevant time appearing in another Court. In the first case it was observed that in exercising the discretion to restore or not to restore regard must also be had to the nature of the duties of the counsel towards his other clients and the other Courts.' In the second case too a Division Bench restored the appeal, as the omission of the counsel to appear was considered to be "unavoidable", because, "he was busy with one of his other cases in another learned counsel appearing for the appellants has argued with some force that the averments in the restoration of the appeal not having been converted by any one, clearly indicate that this was an eminently fit case for the restoration of the appeal." And finally treated this as sufficient cause while observing that:-- "In view of the above, we have come to the conclusion that in this case there was "sufficient cause" for non-appearance of the counsel in the present Court and that the High Court had in exercising its discretion to dismiss the appeal for default, not acted upon sound judicial principles after taking all relevant facts into consideration. The counsel appearing in the appeal was, in no way, negligent or remiss in the discharge of his duties." The principle of law laid down in this judgment has been consistently followed by the Courts up till now. Even the Courts have considered the ordinary humane being's error like inadvertence of the counsel to note in his diary the date of hearing of the case. In the case titled Abdul Rehman v. Azad Government and others, (Civil Appeal No. 29/2009 decided on 5.11.2012), this Court while dealing with sufficient cause has observed as under:-- "In another case titled Muhammad Khan through legal heirs and others v. Shabrati, reported as [PLD 1995 Kar. 267], while dealing with the sufficient cause, the Court has observed as under:-- 'The expression 'sufficient cause' is not capable of being confined to precise, identical, and in variable definition, nor any hard and fast rule can be propounded as to encompass all possible eventualities which may arise due to particular facts and circumstances of each case. Therefore, the parameter of each case would primarily be its own facts, which would have to be taken into consideration for determining as to whether sufficient cause is shown or not. To make a mistake about the date is not lapse of category, which can out-rightly be excluded from the scope of bona fide mistake. Such mistake occurs by misapprehension of the advocate and some time by unintentional wrong communication by the clerk of the Court. In this case, the mistake was bona fide. It is established from record on that particular date two cases having same number were fixed. It being so, the possibility of noting down a wrong date could not be ruled out. Under the circumstances, the Courts below should have exercised discretion in favour of the applicant. Law favours adjudication on merits and this principle is to be followed unless there are practical difficulties which cannot be surmounted.' The Courts are also of the view that the discretion for restoration is also to be liberally exercised subject to advance the cause of substantial justice." For the above stated reasons, this appeal merits acceptance. Consequently, while vacating the impugned order the appeal stands restored to its original number which shall be now decided on merits by the learned High Court according to law. This appeal is accepted with no orders as to costs. ZC/5/SC(AJ&K) Appeal allowed.