2006 PLP 733 (SCMR)

Representation

• ----O. IV, R.2 & O. XXXIII, R.6---Appeal, restoration of---Absence of Advocate-on-Record, his explanation being that he was busy before another Bench of the Court---Non-filing of affidavit by counsel---Advocate-on-Record did not offer any satisfactory explanation or his absence from Supreme Court, did not give particulars of the case in which he was busy before another Bench of Supreme Court---Advocate on-Record had placed on record his affidavit in support of the contents of the application for restoration of the appeal---Neither the Advocate-on-Record turned up throughout the day nor the Advocate of Supreme Court placed on record his own affidavit in support of the ground taken for restoration of the appeal---Validity---Mere placing on record photostat copy of airline ticket would not be sufficient to recall the order of the dismissal of appeal for non-prosecution---Although the personal appearance of appellant was not required yet in such circumstances the absence of appellant would not be justified---Advocate-on-Record even in presence of the counsel, who was engaged to conduct the case, was supposed to remain present in Court during the hearing of the case in terms of O.IV, R.2 of Supreme Court Rules, 1980---Supreme Court declined to restore the appeal---Application was dismissed.
• Ali Sibtain Fazli, Advocate Supreme Court with M.A. Zahid, Advocate-on-Record for Petitioner.
• MUHAMMAD NAWAZ ABBASI, J.--- The Civil Appeal No.1153 of 1997 was dismissed for non-prosecution on 24-10-2002. This civil miscellaneous application under Order XXXIII, Rule 6 of the Supreme Court Rules 1980 has been moved for restoration of Civil Appeal mainly on he ground that the learned counsel had to travel by morning flight from Lahore to Islamabad to appear before this Court but unfortunately he missed the flight and in support thereof placed on record photostat copy of the travelling ticket of PIA for the said date. The learned counsel added that his junior colleague Mr. Nasar Ahmed, Advocate, was present in Court but he being not enrolled as an Advocate of this Court did not make a request for adjournment whereas Mr. M.A. Zaidi, Advocate-on-Record was also not present being busy before another Bench and could not attend the appeal whereas the appellant while depending on his counsel and the Advocate-on-Record not felt it necessary to remain present at the time of hearing of the appeal.
• 2. Mr. M.A. Zaidi, Advocate-on-Record without offering any satisfactory explanation of his absence from the Court and the particulars of the case in which he was busy before another Bench, has placed on record his affidavit in support of the contents of this application. It is noticeable that neither Mr. M.A. Zaidi, Advocate-on-Record had turned up throughout the day nor the learned Advocate Supreme Court placed on record his own affidavit in support of the ground taken for restoration of the appeal. Mr. Nasar Ahmed, Advocate, has also not given an affidavit of his presence in A Court on behalf of his senior and in absence of any cogent reason, mere placing on record photostat copy of the PTA Ticket would not be sufficient to recall the order of dismissal of appeal for non prosecution. Undoubtedly the personal appearance of the appellant was not required but in such circumstances, 'the absence of appellant would not be justified.
• 3. We may point out that an Advocate-on-Record even in presence of the learned counsel, who is engaged to conduct the case, is supposed to remain present in Court during the hearing of the case in terms of Order IV, Rule 2 of the Supreme Court Rules, 1980. This Court in Habib Al-Wahab Alkhairi v. Commissioner, Rawalpindi Division PLD 1992 SC 587 has held that "if a party and/or the counsel who has to argue the case is absent, the Advocate-on-Record is hound by his duty to assist and argue the case. The Advocate-on-Record in the present case has not offered reasonable explanation of his absence.

Judgment & Decree