P L D 2004 Karachi 537 (PLP)

Laws Cited

Representation

• Sultan Ahmed Khan for Petitioner.
• Ms. Mehjabeen Farzana for Respondents.
• 3. Mr. Naveed Ahmed Khan, learned Advocate for petitioner argued that after receiving the rent appeal by way of transfer the learned Vth Additional District Judge, Karachi (Central) issued Court motion notices to the parties and their counsel but dismissed the appeal for non -prosecution without effecting legal service thereof upon the Advocate of petitioner/appellant and the appellant himself. According to the learned Advocate, although the bailiff returned the notice with endorsement that it was served upon the Advocate at his address but the endorsement was not on oath and also it was not clear as to whom the notice was delivered. In support of this contention the learned counsel referred to decision of this Court reported in case of Yousuf v. Mst. Rabia (PLD 1987 Karachi 185).
• 4. Learned Advocate next contended that on 17--1-2002 the appeal was fixed for hearing, therefore, the Appellate Court could only decide it on merits instead of dismissing it for non-prosecution. He has referred to decisions in Mst. Qamar Sultana alias Qamarunissa v. Abdul Hussain another (PLD 1982 Karachi 355).
• 5. The respondent's learned Advocate defended the impugned order-
• 6. Undisputedly, the F.R.A. filed by the petitioner was received by the learned Vth Additional District Judge, Karachi (Central) by way of transfer. It is also a fact that he ordered the service of Court motion notice upon the appellant/the petitioner and his learned Advocate. It is also admitted that the notice could not be served upon the petitioner/appellant. However, the notice issued to the learned Advocate of the appellant was served. The endorsement on the record and the contents of the impugned order show the delivery of Court motion notice to the appellant's learned Advocate for hearing on 20-9-2001, 23-10-2001 and 6-12-2001. Mr. Abul Inam, the learned Advocate representing the appellant has not come forward to deny that service. As provided by Order III rules 2 and 3 the service effected upon a recognized agent i.e. the Advocate is service upon party. Thus legally the Court motion notice served upon petitioner/appellant's Advocate on successive occasions which is deemed to be satisfactory service upon the party. In support of this view decision of the Hon'ble Supreme Court in case of Shaikh Muhammad Akram and others v. Muhammad Iqbal and 18 others (1996 SCMR 1376) can be referred to. Despite service of notice neither the appellant nor his learned Advocate cared to appear in Court. The learned Appellate Court then fixed the appeal for hearing on 17-1-2002 which by itself means 'that the service was accepted as valid. Admittedly, neither the appellant/petitioner nor his learned Advocate appeared before the Court on that date. In absence of the appellant and his learned Advocate the dismissal for' non-prosecution was legally justified. No legal embargo against the dismissal for non-prosecution stands in the way. On this point the pronouncement of the apex Court in Abida Riasat v. Sequira (1985 SCMR 1066) is very clear. The application for restoration of appeal was, therefore dismissed for .valid reasons and the order does not suffer from any legal or jurisdictional infirmity. No interference is warranted in exercise of Constitutional jurisdiction. The decision of Karachi High Court in case of Qamar Sultana (supra) says that after service of notice for appearance the matter should be fixed for hearing instead of dismissing it on the date fixed for appearance. In the present case the appeal was dismissed after fixing it for hearing and not on the date fixed for appearance. Also the pronouncement in the case of Yousuf (supra) is not helpful to the petitioner in the circumstances. The petition is dismissed being meritless.

Headnotes / Summary

Judgment & Decree