P L D 1990 Supreme Court 753 (PLP)

MUHAMMAD AFZAL ZULLAH, CJ.‑‑‑Leave to appeal has been sought by a plaintiff; aginst the dismissal of his Civil Revision by the High Court. It was directed against recall and setting aside of ex pane proceedings and order, on the application of the defendant/respondent. There is no dispute that the learned counsel engaged by the respondent for appearance before the trial Court, did not appear on 13‑9‑1984 for and till, which date he had himself sought time to file written statement. His explanation in the affidavit sworn and filed by himself is as follows:‑‑ "That on 28‑8‑1984 1 handed over the case file to my Associate Mr. Zakauddin, Advocate to file written statement on 29‑8‑1984. "That on 29‑8‑1984 my Associate, inadvertently noted next date as 13‑10‑1984 and informed me accordingly and I was under the bona fide impression that the written statement was filed on 29‑8‑1984 and the next date of 13‑10‑1984 was fixed for issues. "That on 13‑10‑1984 1 attended this Hon'ble Court and came to know that in fact on 29‑8‑1984 this suit was adjourned to 13‑9‑1984, instead of 13‑10‑1984, as wrongly noted in the Diary, which was again adjourned to 27‑9‑1984 and 29‑9‑1984 and orders were passed ex parte." Two clear cut propositions emerge from the above resume: either the counsel filed a false affidavit; or, if it is true and the default in appearance stands fully explained. We may straightaway remark that it was not a case either of gross negligence amounting to willful mala fide disregard of client's interest or a deliberate attempt to avoid professional responsibility for reasons like lethargy, A incompetence, insensitivity etc. The learned counsel for the petitioner who knew the learned advocate who submitted his own affidavit, did not level any such, charge against him. He also was hesitant to state, on account of the ordinary conduct of the said Advocate, that he had told a lie in his affidavit. And we may remark that Honorable members of the Bar very rarely submit their own affidavits in support of their clients' plea when the same can be supported by the B clients' own affidavit. Keeping in view all the circumstances of this case, the submission of the Advocate of his own affidavit further signifies the strength of the case of the respondent/defendant on the issue of non‑appearance before the learned trial Court, on the relevant dates. Not only this, reasonably responsible Advocate, as it appears the one involved in this case was such an Advocate, would in our view not tell a lie for his client; and would himself suffer by paying the damages rather than to corrupt the proceedings by a false affidavit. It appears for all these reasons the learned counsel appearing before us, took up only one plea; by which he tried to keep balance between the interest of his client, his own duty and the conduct and character of his brother lawyer. It seems to us to be very safe approach. It is to the effect that even if the lawyer's statement made in the affidavit in the facts and circumstances could be accepted, C he should have filed another affidavit of his junior. Prima facie, the contention seemed sound but on deeper analysis it is found of no force. In the entire background of this case the argument seems to p be that the Advocate's testimony needed corroboration and that it was not safe to accept the same without corroboration. In proper cases, to be fair to the learned counsel appearing before us, it might be a good course to follow; but in the circumstances of this case it is not possible to refute or reject the Advocate's statement; as, his diary did show relevant date as 13‑10‑1984. And further he did also appear in Court on 13‑10‑1984 when he was told that the relevant date was in fact 13‑9‑1984. E Learned counsel did not insist that the averments in the affidavit relating to the entry in the diary and appearance in Court regarding 13‑10‑1984, should not be believed otherwise. Thus looked at from whatever angle there is no justification for interference. Leave to appeal, accordingly, is refused. M.BA./A‑756/S Leave refused.