1989 PLP 3342 (MLD)

M.M. Bhatti and Akhtar Shabbir for Respondents. Abdul Nabi Chaudhry for the Settlement Department. This is an application for the restoration of Writ Petition No.140/R of 1975, which was dismissed for non‑prosecution on 1‑10‑1988. Learned counsel for the respondents have opposed this application.

2. Learned counsel for the petitioners submitted that no notice for the hearing of the main case was given to the petitioners; that intimation of the date of hearing was sent to Mr. MA. Salim, Advocate, the learned counsel for the petitioners, who had telegraphically informed the Court that he was unable to reach Bahawalpur on 1‑10‑1988; that due to the damage done by the heavy floods, the road and rail links were not intact, and as such it was not possible for the counsel of the petitioners to appear before the Court on 1‑10‑1988; that Mr. M.A. Salim had not informed the petitioners about the date of the hearing of the petition and that non‑appearance of the petitioners as well as their Counsel, was not intentional. Conversely the learned counsel for the respondents maintained that notice of the date of hearing was sent to Mr. M.A. Salim, the learned counsel for the petitioners, which he received in time; that the service of a counsel is service of his client and as such it does not lie in the mouth of the petitioners to say that they were not aware of the date of hearing; that the petitioners have taken divergent pleas inasmuch as in the telegram sent by him Mr. MA. Salim, Advocate, had not given any reason for his non‑appearance; that the only reason given in the application for the restoration of the writ petition by the petitioners was/is that their counsel Mr. M. A. Salim had not informed them about the date of the hearing of the case and that in the application of the restoration of the writ petition it has nowhere been stated that the road or the rail links were not in order. Reliance has been placed on Dhunda v. Province of Punjab and others PLD 1960 Lah. 786 and Zulfiqar Ali v. Lai Din and others 1974 SCMR 162.

3. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the petitioners for the reason that due to abnormal floods in rivers Ravi and Sutlej, the road and rail links between Lahore and Bahawalpur were not intact; that Mr. M.A. Salim, learned counsel for the petitioners, had telegraphically requested for adjournment intimating that he was unable to reach; that since in the telegram, the cause of this inability was not given, this Court had taken exception to the prayer for adjournment through telegram; that in his affidavit filed during the hearing of this petition Mr. M.A. Salim has stated that due to the heavy floods in hunjah, the road and rail links were not in order; so he could not reach Bahawalpur; that no counter‑affidavit has been filed by the respondents to contradict the contents of the affidavit of Mr. M.A. Salim; that I do not see any reason to disbelieve the affidavit of Mr. M.A. Salim, Advocate and that since Mr. M.A. Salim had not informed his clients about the date of hearing, therefore, the reason for the non‑appearance of the petitioners on the date of hearing is quite understandable. No doubt intimation of the date of hearing to a counsel is intimation to his client in the eye of law, but the fact remains that in the instant case the counsel had not informed his clients about the date of the hearing of the writ petition. The case‑law relied on by the learned counsel for the respondents is quite distinguishable. For all these reasons I am satisfied that there was sufficient cause for the non‑appearance of the petitioners as well as their counsel before the Court when their case was called on for hearing on 1‑10‑1988. For what has been said above, this petition is accepted and the order dated 1‑10‑1988, whereby Writ Petition No.140/R‑1975 was dismissed for non prosecution, is set aside and the writ petition is restored to its original number. MA.K./M‑1325/L Writ petition restored.