2017 PLP 899 (MLD)

The facts relevant for disposal of this revision petition are that respondent instituted a suit for Permanent injunction with the assertion that she is co-owner of suit properties, duly described in the plaint, within the precincts of Mughal Khas, Tehsil and District Rawalpindi; that she was enjoying the possession over the properties peacefully and without any let or hindrance from any corner, hence, start of construction of road by the petitioner/defendant on her owned land, without adopting any legal process of acquisition was illegal and unlawful. Said suit was decreed vide judgment dated 16.04.2013 by the learned trial Court, appeal whereof preferred by defendant/petitioner was dismissed for non-prosecution after its admission on 08.03.2014 leading to filing an application for its readmission on 10.03.2014 and considering the reply/arguments of the respondent the application was rejected vide impugned order dated 12.06.2014, operative part of which is reproduced hereunder for facility of reference:- "For the reasons recorded above the application for readmission of appeal has not been filed by the petitioners-appellants in terms of Order XLI, Rule 19, C.P.C., nor any reason has been shown for non-appearance of petitioners-appellants himself on the relevant date; therefore, the application merits dismissal. Dismissed accordingly with no order as to costs." The petitioners through this revision application, call-in-question the legality and validity of the impugned decision of learned first appellate Court.

2. Arguments heard: Record perused.

3. Irrespective of the settled law on the question involved that instead of giving upper edge to the technicalities matters should be decided on merits, it is straight away observed that the application seeking readmission of appeal ought to have been allowed, as the same was promptly filed i.e. the very next day, with affidavit of the learned counsel, sufficiently explaining the reasons for non-appearance inasmuch as he stuck in hazardous rush-hour traffic on his return after attending a case before the Court at Murree, by believing and giving it proper and due weight, therefore, it is held that absence of petitioners' counsel was neither intentional nor deliberate but on account of circumstances beyond his control.

4. The question to be considered, keeping in view contention raised by the learned counsel for the respondent, is 'whether the order rejecting the application presented by learned counsel with his affidavit without signatures of the petitioners/applicants and missing of any explanation about absence of the appellants/petitioners and their affidavit, could be considered an application on behalf of competent persons. In this context, I would like to refer the provisions of Order III Rule 4, C.P.C., which in gist and substance, provide wider scope and the defect, if any, is not fatal where an application is presented by an Advocate to whom authority has been given in terms of Rule 4 of Order III, C.P.C. In this regard, I am, also fortified by a case-law reported in United Bank Limited v. Mian Tajammul Hussain (1998 CLC 179) where it is held that appointment of counsel would remain in force until determined with leave of Court or until party appointing him or counsel died or until all proceedings in regard to his client ended. In same sequence, Abdul Latif v. Additional District Judge/Election Tribunal/M. C. Arifwala and others (2000 YLR 946) is quoted with advantage wherein it is held as under:-- "So far as the question of verification of the petition is concerned, it is by now a well-settled s proposition that the matter of signing or verifying the pleadings is not such as would affect the merits of a particular case, and that pleadings can be signed or verified at any time " So I must say that in absence of any expression indicating limitation on the powers of Advocates he would have the right to do everything that was necessary for proper conduct of the case, and if the case had been decided ex parte or dismissed in default, the Advocate had an implied authority to get that order set-aside so that the case be heard on the merits. As to the second limb of argument that petitioners did not appear before the Court on crucial date, suffice it to say that they had engaged the counsel who was representing the petitioners and his inability to attend the Court proceeding had been explained in a clear manner duly supported by his affidavit. When the learned counsel was attending the Court proceedings, then there was no occasion to raise any objection regarding non-availability of the parties unless their presence was not specifically required. Unfortunately the counsel was stuck in traffic and that being unavoidable circumstance was beyond his control and this could be regarded a sufficient ground as the learned counsel had proved his inability by appending his affidavit. The determination of the learned first appellate Court qua non-appearance of the party/petitioner being fatal was un-warranted because the case was not fixed for appearance of the parties but for hearing of the appeal which had to be explained by the learned counsel, hence on the one hand learned first appellate accepted the justification of the learned counsel for his non-availability at the time' of call of the appeal but non-suited on account of non-furnishing explanation qua absence of the party. The judgment relied upon by the learned first appellate Court is not squarely applicable as facts of the same are distinguishable to that of present one. In the referred case the justification given by the learned counsel was declared untrue because there was contradiction in the statement and plea taken by the parties therein but here the stand taken in the application has been fully proved and accepted by the Court as true, however it was dismissed on the ground that plea of the learned counsel did not preclude the petitioners from giving their justification about their absence which was not warranted in facts and circumstances of the case, hence it is held that the learned first appellate Court has committed material illegality and irregularity while not accepting the application for restoration filed by the learned counsel fully authorized on behalf of his client duly supported by his affidavit.

5. In view of the above, I am constrained to hold that the provisions of law on the subject have been misconstrued by the learned first appellate Court. Resultantly, this revision petition is accepted, the order impugned of she learned lower appellate Court is set-aside, in consequence whereof the application for readmission of appeal is allowed and appeal is restored to its original number. The parties are directed to appear before the District Judge concerned on 05.11.2016, who shall either himself hear the appeal or entrust it to any other Court of competent Judge for its adjudication in accordance with law. ZC/D-6/L Revision allowed.