P L D 1992 Supreme Court 330 (PLP)

WALT MUHAMMAD KHAN, J.

Through the instant appeal, by leave of the Court, Farman Ali appellant has called in question the order dated 15-7-1990 passed by the Lahore High Court, whereby his application for restoration of the revision petition filed by him which was dismissed for non-prosecution on 13-11-1988, was dismissed alongwith the application for condonation of delay. The leave granting order is as follows:- "The .learned counsel for the petitioner relies on Mst. Sardaran Bibi and another v. Allahdino PLD 1990 Karachi 227 and Alico Civil Engineers and Contractors, Lahore v. Syeda Mushtri R:ifiq Ahmad and another (1980 CLC 466--Lahore) for avoidance of the impugned Order. An authoritative pronouncement on the subject is called for. Leave.to appeal is, therefore, granted. Security Rs.5,000." The facts of the case, briefly stated, are that the appellant filed the suit for pre-emption against the respondents which was dismissed vide order dated 4-5-1986 and the appeal filed against it also met the same fate vide order dated 21-10-1986. The appellant filed revision petition on 26-10-1986 through Rona Abdul Hameed Khan, Advocate. Before the date fixed for hearing, the appellant took away brief from him and engaged MrA.K. Dogar. Advocate, who filed his power of attorney in the High Court on 18-8-1987 which was dilly entered in the Diary at Sr.No.573, but neither the power of attorney was annexed with the file of the revision petition nor a note was given in the cause list that Mr. A.K. Dogar was a counsel for the appellant, with the result that the new counsel had no notice of the revision petition having been fixed for hearing on 13-11-1988 on which date Rana Abdul Hameed Khan, Advocate, on seeing his name appearing on the cause list, put in appearance in the Court and stated "no instructions". Consequently, the revision petition was dismissed for non-prosecution. The appellant, after sufficient length of time, came to know of the. dismissal of the revision petition and informed his new counsel Mi. A K, Dogar, who, after making himself sure about the dismissal from the office, instituted the petition for restoration of the revision petition alongwith an for condonation of delay, a notice whereof was given to the opposite party and the learned High Court after hearing the learned counsel for the parties dismissed both the petitions vide order dated 15-7-1990, holding that the petitioner had not been able to make out sufficient cause either for restoration of the revision petition or for condonation of delay. Hence the instant appeal through leave of the Court. We have hard Mr. A.K. Dogar, Advocate, for the appellant, Mr: Muhammad Munir Peracha, Advocate, for the respondents and have perused the record of the case. The learned counsel for the appellant argued with vehemence that the dismissal of the revision petition was the result of negligence of the officer concerned of the High Court who failed to place his power of attorney on the judicial file of the revision petition and omitted to record his name in the cause list for the date fixed, as counsel for the appellant. According to him, Rana Abdul Hameed Khan, Advocate, put in appearance before the Court stating no instructions but the appellant had taken away brief from him already and according to his (Rana's) sworn affidavit he had informed the Court about this fact as well and, as such, law and equity demanded adjournment of the revision petition for another date with a notice to the appellant personally. He stressed that nobody is to suffer for acts of the Court. He placed reliance on Ch. Mehraj Din v. West Pakistan Province and 8 others 1970 SCMR 96, Lt. Col. Mirza Munawar Beg etc. v. Mst Hassan Bibi and others 1981 SCMR 160, Mst.;Sardaran Bibi and another v. Allahdino PLD 1990 Karachi 227, Alico Civil Engineers and Contractors and another v. Syeda Mushtri Rafiq Ahmad and another 1980 CLC 466, Sh. Abdul Majid v. Habib Ahmad.1979 SCMR 309, and Shaukat Hussain and others v. Msl. Qaisarah Begum and others 1988 SCMR

263. The learned counsel for the respondent, on the other hand, conceded the factual assertion of the learned counsel for the appellant but submitted that Rana Abdul Hameed never informed the Court about the taking away of the brief from him as is apparent from the order of the Court and that in consequence, the Court had to dismiss the revision petition for non-prosecution. Be that as it may, without entering into the controversy whether the learned High Court could legally dismiss the revision petition for nonprosecution in the circumstances of the case or not, this much is clear from the affidavit of Rana Abdul Hameed and conduct of Mr. A.K. Dogar in his filing power of attorney earlier than the date fixed that the appellant had taken away the brief from the former and entrusted the same to the latter for the conduct of his revision petition. Admittedly, the appellant had no notice of the date of hearing and if Rana Abdul Hameed did not inform the Court that the brief had been taken away from him by the appellant or the office did not perform its duty to place the power of attorney of Mr. A.K. Dogar on the judicial file and enter his name in the cause list, the appellant is not to be penalised for the same. We accordingly, accept the appeal, set aside the impugned order of the High Court and by condoning the delay, restore the revision petition dismissed .for non-prosecution on 13-11-1988 and remand the same back to the High Court for decision on merits. M.BA./F-236/S Appeal accepted.