1989SCMR699 (PLP)

Date of hearing: 5th December, 1988. JUDGEMENT SHAFIUR RAHMAN, J.‑‑The petitioner is a plaintiff in a pending Civil Suit who seeks leave to appeal against the judgment/order of the Lahore High Court, dated 30th of October, 1988 whereby an application filed by him seeking restoration of Civil Revision Petition filed by him and earlier dismissed for non prosecution, was rejected. According to the facts given by the learned counsel for the petitioner, the petitioner entered as a tenant of a shop in 1962. The shop was purchased by the minor respondents Nos. l and 2 in 1975 through their father Amir Hussain respondent No. 3 . According to the plaintiff under an oral agreement to sell, Amir Hussain sold the shop to him for a sum of Rs.15,000 which was paid without any receipt and since 1976 the petitioner claims to be in possession of it, as owner. It appears that the Rent Controller was approached by the respondents for eviction of the petitioner and an ejectment order was passed against him on 23‑10‑1979 which was maintained in Appeal on 16‑11‑1980. It was in this background that the petitioner instituted a Civil Suit claiming that he was the owner of the property and not liable to be evicted there from. He prayed for an interim order staying his ejectment from the property which request was granted by the trial Court but on appeal the said order was vacated on 24‑6‑1981. Against this Order he filed a Revision Petition which was admitted. In 1981, the interim stay order was renewed in his favour. When the Revision Petition came up for hearing there was no representation on behalf of the petitioner on which it was dismissed for non -prosecution on 17‑10‑1988. The operative part of the order dated 17‑10‑1988 is as hereunder:‑‑ "Petitioner's counsel has not turned up in spite of the warning conveyed to him on 1‑10‑1988 and also the petitioner separately in terms of my order dated 27‑9‑1988. In the ordinary course of post these intimations would have reached the addressees but still no one has appeared to pursue this case. This amply strengthens my view framed in the said order that the omission of the counsel to diligently pursue this case is improperly motivated. In the said order I have explicitly observed that it will not be possible to grant any further adjournment and the failure to pursue the case will render it liable to go by default. The present order deserves to be read conjunctively with the said order dated 27‑9‑1988.

2. In the above circumstances, this civil revision is dismissed for non -prosecution and, in consequence, the interim order passed on 21‑6‑1982, to restrain eviction of the petitioner from the shop in dispute, also gets vacated."` An application was thereafter filed seeking restoration of the Civil Revision Petition on the ground that no notice was served on the learned counsel representing the petitioner and his failure to attend was on account of lack of information with regard to the date fixed. The learned Judge examined it at great length and found that not only a registered post acknowledgment due post‑card had issued to the learned counsel for the petitioner, he had also the requisite information and should have had the requisite information, about the date of hearing, and restoration was refused. Mr. Ghulam Mujtaba, the learned counsel for the petitioner has contended before us that though there is evidence that Registered Post Card with Acknowledgement Due, had issued from the office of the High Court on 6‑10‑1988 informing the learned counsel for the petitioner for appearance on the next date of hearing i.e. 17‑10‑1988, in the absence of the Receipt of the Acknowledgement Card by the High Court Office, it cannot be assumed that the service On him had taken place. In any case, according to the learned counsel the facts were‑ such where the restoration should have been allowed in view of the contested litigation between the parties. The learned counsel for the petitioner has not riled a copy of the order dated 27‑9‑1988 with which, according to the observations of the learned Judge himself, the order dated 17‑10‑1988 had to be read conjunctively. It appears that a chance was given on 27‑9‑1988 to the learned counsel by way of abundant caution and for that purpose the registered post‑card has issued to him. There is nothing A on, the record to show that the post‑card was not addressed properly or was not despatched on the date on which it was shown, allowing sufficient margin for service and appearance of the learned counsel. In the case of Khuda Bakhsh v. Muhammad Yaqoob etc. (1981 S C M R 179) this Court has held as follows:‑‑ "The best evidence in the circumstances that could have been produced by the petitioner has been produced, and we do not find in the law any provision which requires the production of the postal acknowledgement before the Court of law. In fact it is very seldom that such acknowledgement reaches the sender and it is a matter of every day occurrence." In the absence of the Postal Acknowledgement there was material before the High Court which got strength from the antecedent conduct of the petitioner B that he was avoiding appearance and adjudication on merits. In the circumstances, the dismissal of the Revision petition in default and refusal to restore it raises no such question of law as may require further examination in this Court. Leave to appeal is therefore, refused. A.A./A‑404/S Leave to appeal refused.