1997 PLP 689 (CLC)

Abdul Naeem and Nasir Javed for Appellant. Abdul Qadir Shaikh for Respondents. Through this application appellant seeks restoration of his appeal which was dismissed for non‑prosecution on 6‑6‑1996 on the ground of absence of appellant and his counsel and that no further adjournment was to be granted as directed by this Court in its order dated 23‑5‑1996. Alongwith the application appellant has filed his own affidavit and that of his counsel Mr. Abdul Naeem and his junior counsel Mr. Nasir Javed. Appellant in the application has mentioned that in the evening of 5‑6‑1996 he attended the office of his counsel in connection with the hearing of the appeal who informed him that he will proceed with the above appeal on 6‑6‑1996 and his appearance is not necessary hence, he did not attend this Court on the said date. He has further mentioned that in the evening of 6‑6‑1996 he enquired on telephone about the fate of his case and was informed by his counsel that the appeal has been dismissed for non‑prosecution as he fell ill in the morning and could not appear and that he sent his junior to make a request for short adjournment but the same was turned down. It is further mentioned that the non‑appearance of appellant as well as his counsel for the above reasons was neither deliberate nor intentional, therefore, appeal may kindly be re‑admitted for regular hearing. Mr. Abdul Naeem and his junior Nasir Javed, Advocates in their affidavits have reiterated the same grounds and requested for the restoration of the appeal. In rebuttal respondent Mst. Mumtaz Begum in her counter‑affidavit has urged for the dismissal of the application and has agitated that the learned counsel for the appellant has remained absent knowingly and deliberately anticipating that the adjournment will be granted as a matter of course ignoring the fact that this date was specifically fixed by the Court and no further adjournment would be granted. She has further stressed that since no proof in the shape of medical certificate about the illness of counsel is filed, therefore, the application does not merit consideration and is liable to be dismissed. Mr. Abdul Naeem and Mr. Abdul Qadir Shaikh mainly argued as per the case of their parties stated above. In support Mr. Abdul Naeem has referred the case‑law reported in 1984 CLC 2903, 1990 SCMR 1025 and 1985 SCMR 2064. On the other side, Mr. Abdul Qadir Shaikh has relied upon PLD 1959 Karachi 143 (a) and 1991 SCMR 403 in support of his case. As far as the appellant himself is concerned, it may be mentioned that he was neither directed by this Court nor had instructions from his counsel that his presence was necessary on the date of hearing. Even otherwise it was only for the counsel to deliver arguments on the appeal, hence the presence of appellant on the said date was immaterial. Order III, rule 1, C.P.C. crystallizes the above discussion and its provision clarifies which read as: "Provided that any such appearance shall, if the Court so directs, be made by the party in person. " The second contention that learned counsel for appellant cannot affect his appearance because of his sudden illness in the morning supported by his personal affidavit and the affidavit of his junior counsel merits consideration. Mr. Abdul Naeem has stated in his affidavit on oath that he instructed appellant a day earlier in the evening that he will proceed with the appeal and that the appellant's presence is not necessary, but as he suddenly fell ill in the morning he asked his junior to make a request for adjournment which was turned down. This is also supported by his junior counsel in his affidavit. As against the affidavits of two counsel, a simple word of respondent cannot be given weight and there is no reason to disbelieve the affidavits. In case of Khalid Saeed v. District Judge, Karachi and another (1984 CLC 2903), it was under the similar circumstances that the appeal dismissed for non‑prosecution was restored by this Court. In case of Mst. Zubeda Mumtaz Begum and others v. Mst. Ikram Jan and another (1990 SCMR 1025) Hob'ble Supreme Court dismissed the petition and maintained that the learned District Judge had rightly restored the appeal and set aside the order of dismissal. In this citation it is observed that affidavit of counsel be given preference to that submitted by the party. In the case of Mst. Marian Bai and another v. Mst. Mehrunnisa Begum (1985 SCMR 2064) Hon'ble Supreme Court granted the petition for leave to appeal against the order of High Court dismissing the application for restoration of appeal and remanded the same for hearing under the similar circumstances of the present case. The law referred by Mr. Abdul Qadir Shaikh is not applicable with the facts and circumstances of the present case and is on different footings. In case of Mst. Rasool Bibi and others v. Province of the Punjab through Collector Siakot and others (1991 SCMR 403) the petition for restoration of appeal was dismissed, not only on the ground of limitation, but also on the ground that there was no plausible explanation for petitioner's absence and no prayer having been made for condonation of delay. For the above reasons this application is allowed and the appeal is restored and re‑admitted for regular hearing. A.A./M‑139/K Appeal restored.