2001 PLP 659 (SCMR)

ABDUL HAMEED DOGAR, J.

The petitioner seeks leave to appeal against order dated 28-9-2000 passed by a learned Division Bench of the High Court of Sindh, Karachi whereby Miscellaneous Application No. 1025 of 1998 seeking restoration of his Constitutional Petition No. D-176 of 1991 was dismissed.

2. Briefly, stated, facts leading to a filing of the petition are that the abovementioned petition was fixed for regular hearing on 11-3-1991 with interim order of status quo when on that date no one appeared on behalf of the petitioner, as such the same was dismissed for non-prosecution.

3. On 24-3-1998 the petitioner moved abovementioned Miscellaneous Application for restoration disclosing therein that on the relevant date his counsel who comes from Lahore could not appear due to his pre-occupation at Lahore High Court. Since his non-appearance was beyond the control of the petitioner as such there being no negligence on his part, the matter be restored and decided on merits.

4. The matter was contested by the respondent by way of filing counter-affidavit wherein the assertions of the petitioner was denied and it was urged that in case the petitioner's counsel was to come out of Karachi, it was his duty to be vigilant about his case. Accordingly the learned High Court finding no cogent reason refused to restore the petition, vide impugned order.

5. Mr. Muhammad Yasin Azad, the counsel for the petitioner reiterated the same arguments as advanced by him before the High Court. He, however, could not show any valid reason for the restoration of the matter. He frankly conceded that Mr. Tariq Javid, the counsel for the petitioner did not file his personal affidavit in support of his contentions raised by the petitioner about his absence on the particular date before tire learned High Court.

6. The record reveals that it was not the first occasion when the petitioner as well as his counsel Mr. Tariq Javid were not present but they had remained absent on almost every date of hearing. The petitioner in his application as well as supporting affidavit has not advanced any reasonable or sufficient ground for his non-appearance on the instant date of hearing. The plea that his counsel was busy before the High Court at Lahore was also without substance and was not supported either by affidavit of his said counsel or any other documentary proof. Even in such eventuality it was incumbent upon the counsel for the petitioner to have made alternate arrangement or would have sent any such fax message. In any ease the petitioner cannot be absolved of his responsibilities of attending Court on each and every regular date of hearing particularly when his counsel was engaged from outside Karachi. Any negligence on the part of parties' counsel A would be binding on such party. In the above circumstances of the case, the learned High Court had no alternative but was right in Dismissing the matter for non-prosecution. The refusal to restore the same was also justified in view of the fact that no reasonable ground was made out by the petitioner for restoration and there is no exception to the impugned order. Accordingly, the petition being without merits is dismissed and leave to appeal is refused. Q.M.H./M.A.K./D-14/S Petition dismissed.