2005 PLP 369 (CLD)

Syed Najam‑ul‑Hassan Zaidi for the Respondents. C.M. No.87‑C of 2004 is an application for restoration of main appeal, which was dismissed for non- prosecution vide order dated 21‑1‑2003, whereas C.M. No.2‑C of 2004 is an application for condonation of delay under section 5 of the Limitation Act for filing belated application for restoration/re‑admission of appeal; while C.M. No.3‑C of 2004 is an application for the grant of ad interim relief.

2. The learned counsel of the applicant submits that the learned counsel of the appellant felt serious pain in his heart on 21‑1‑2003 and there was no alternative for him except to inform his Clerk to get adjournment in R.F.A. No.319 of 2000. The Clerk of learned counsel of the applicant/appellant had intimated the Reader of this Court on 21‑1‑2003 regarding illness of his counsel and he subsequently, informed his counsel that case was adjourned on 21‑1‑2003, but in fact the case was not adjourned and the same was dismissed for non‑prosecution. He further submits that he mentioned in his case diary that case had been adjourned.

3. The Manager of the respondents‑Bank, on 28‑1‑2004, verbally informed his close friend that mutation was sanctioned in favour of Bank qua land of the applicant. The applicant secured certified copy of the said mutation, sanctioned in favour of Bank on 29‑1‑2004. Subsequently, he contacted his counsel and requested him to seek information regarding latest position of the aforesaid appeal but he could not find out latest position of the case on account of Eid holidays and found latest position on 7‑2‑2004.

4. The learned counsel of the applicant submits that the learned counsel of appellant has given his own affidavit in support of the contents of this application. He further submits that illness of counsel and non‑appearance of learned counsel of the applicant, on account of un avoidable circumstances, is always found a good ground for condonation of delay. He further submits that the Superior Courts insisted that cases be decided on merits instead of technicalities. In support of his contention, he relied upon the following judgments: ‑‑ "Mst. Fatima and another v. Mst. Rehmat Mai" 1989 SCMR 1202; "Mst. Zubaida Mumtaz v. Mst. Ikram Jehan" 1999 SCMR 1025

5. The learned counsel of the respondents submits that the appeal was dismissed for non‑prosecution on 21‑1‑2003, whereas the applicant/appellant has filed an application for restoration/re‑admission of appeal on 9‑2‑2004, which is highly time‑barred. He further submits that according to the averments of the application, the applicant/appellant has obtained knowledge on 28‑1‑2004 but the applicant/ appellant has not filed application immediately and the applicant has filed application for restoration/re‑admission of appeal on 9‑2‑2004. He further submits that the learned Executing Court issued notice to the applicant under Order XXI, rule 66, C.P.C., the property in question was auctioned under the order of Court and the applicant/ appellant did not file an application for restoration of main case well in time. He further submits that the application is liable to be dismissed as the valuable right has accrued to the respondents and sale certificate has also been issued to the auction purchaser i.e. decree‑holder. He further submits that ground of illness of the learned counsel of applicant/appellant has no force in view of law laid down by the Superior Courts. In support of his contention, he relied upon the following judgments:‑‑ "Haji Ghulam Sarwar v. Daya Ram" 1975 SCMR 179; JHANDA v. Maqbool Hussain and others PLJ 1981 SC 297; "JURIO v. Nawab Nabi Bukhsh" 1993 CLC 187; "Hussain Khan v. Ghanno Bibi and others 1997 CLC 1324; "Allah Bachai and others v. Fida Hussain and others" 2004 SCMR 615; "WAPDA v. Messrs Dada Bhoy Cement Indst." 2004 SCMR 1481.

6. We have considered the contentions of learned counsel of the parties and perused the record.

7. In the narration of facts and according to the averments of the application, the learned counsel of applicant/appellant could not appear on account of illness. It is pertinent to mention here that the applicant/appellant did not attach any prescription or medical certificate along with application to show that the learned counsel of applicant/appellant has become ill all of sudden. No doubt the applicant/ appellant's counsel has filed affidavit in support of contents of this application, but affidavit alone will be of no avail to the opportunity. It is also pertinent to mention here that Superior Courts did not consider the ground of illness as a good ground for restoration or re‑admission of appeal. In arriving to this conclusion, we are fortified by the law laid down by the Honourable Supreme Court in "JHANDA v. Maqbool Hussain and others" PLJ 1981 SC

297. Additionally no cause of non‑appearance of the applicant on the date of dismissal of appeal is forth‑coming from the record of the case. In view of what has been discussed above, we do not find any merit in the application as there is no sufficient ground for condonation of delay, as such the same is dismissed. Consequently, main petition (C.M. No.87/C of 2004) is also dismissed being out of time and on merits as well. M. H./M‑706/L Application dismissed.