P L D 2025 Islamabad 343 (PLP)

TARIQ MEHMOOD JAHANGIRI, J.

The Civil Miscellaneous No.981/2022, has been filed for restoration of the main case, which was dismissed for non-prosecution on 07.03.2022, by this Court.

2. The Writ Petition No.4615/2021 was filed on 21.12.2021 in this Court, whereby the impugned letter dated 01.12.2021 issued by the respondents /O.G.D.C.L. has been assailed.

3. Perusal of previous order sheet reveals that on 28.12.2021, notices were issued to the respondents; on 19.01.2022, learned principal counsel for the applicant /petitioner was not available; on 10.02.2022, again learned principal counsel for the applicant/ petitioner was not available; on 07.03.2022, case was called on its turn as well as before the rising of the Court but on both occasions, no one tendered appearance on behalf of the applicant /petitioner, resultantly, the writ petition was dismissed for non-prosecution.

4. The C.M. No.981/2022, for restoration of case has been filed on 15.03.2022.

5. Learned counsel for the applicant/petitioner, inter alia, contends that on 07.03.2022, the petitioner while travelling towards the High Court got stuck in traffic jam as it was blocked due to protocol of some convoy and was unable to reach in time; that as soon as he reached in the Court to attend the Court proceedings but was informed that the main writ petition has already been dismissed for non-prosecution by this Court; non-appearance of the petitioner and his counsel was neither deliberate nor intentional but due to uncontrollable circumstances; as per the dictums laid down by the superior Courts matters ought to be decided on merits rather than on technicalities; if the instant writ petition is not restored to its original number and decided on merits the applicant/ petitioner shall suffer an irreparable loss.

6. Conversely, learned counsel for the respondents/OGDCL vehemently opposed the application and has stated that name of learned counsel for the petitioner appeared in the cause list issued by the this Court; status of dismissal of writ petition was also posted on website of the Islamabad High Court; no sufficient cause has been shown and no plausible reason has been argued by learned counsel for the petitioner, hence, prayed that the instant application for restoration of writ petition, be dismissed.

7. Arguments heard, record perused.

8. The writ petition was fixed for hearing on 07.03.2022, the case was called on its turn as well as before the rising of the Court, but on both the occasions, neither the applicant/petitioner nor his counsel appeared; name of learned counsel for the petitioner was reflected in the cause list; there was no application for adjournment, so petition was dismissed for non-prosecution.

9. That on 15.03.2022, C.M. for restoration was filed, which was fixed for 16.03.2022, notice to the respondents was issued, an application for early hearing was filed by the applicant/petitioner, which was fixed for 27.05.2022, neither the applicant/petitioner nor his counsel appeared but in absence of the applicant, application for early hearing was allowed and the case was fixed for 29.09.2022; on 29.09.2022, learned counsel for the applicant/petitioner filed an application for adjournment, which was allowed; again application for early hearing was filed, which was fixed for 14.06.2024, but only the applicant appeared and his counsel did not appear; case was fixed for 09.07.2024, on the said date principal counsel for the applicant/petitioner was not available and request for adjournment was made by the proxy counsel; then case was fixed for 02.12.2024, the applicant appeared, in person, and stated that his counsel is not available and request for adjournment was made; the case was fixed for 10.02.2025, the applicant/petitioner appeared, in person, and stated that his counsel is not available and request for adjournment was made. The above-mentioned conduct of the applicant/ petitioner and his counsel clearly shows that they are not interested in pursuing the case and delaying/lingering on the matter without any plausible justification.

10. In C.M. for restoration, the only reason for non-appearance is mentioned in paras Nos.2 and 6 of the C.M. for restoration, which are reproduced as under:- "

2. That the applicant while travelling towards the High Court got stuck in traffic jam as it was blocked due to protocol some convoy and was unable to reach in due time. 6. the That the non-appearance of applicant's was neither deliberate nor intentional but due to uncontrollable circumstances."

11. The questions of dismissal of petitions and applications for restoration of the same are dealt with by the provisions of Order IX, Rule 9, C.P.C. For ease of reference Order IX, Rule 9(1) being relevant is reproduced below: "Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks it and shall appoint a day for proceeding with the suit." (Emphasis added) A bare perusal of the aforenoted provision of law makes it abundantly clear that an order of dismissal can be set aside by the Court if the applicant satisfies the Court that there was sufficient cause for his non-appearance when the suit was called for hearing. And if the Court comes to the conclusion that there was sufficient cause for non-appearance of the party, it may make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit.

12. Although the term sufficient cause has not been defined in the Code of Civil Procedure nor can a specific yardstick be put in place for determining what constitutes sufficient cause and what does not, it always depends upon the facts and circumstances of each case and it has to be left to the judicial conscience of the Court to make and formed assessment as to whether the cause disclosed by the petitioners was a reason good enough to satisfy the Court that it was beyond the reasonable control of the party concerned to appear before the Court on the date fixed for hearing. Reliance is placed on a case titled as Rai Muhammad Riaz (decd) through L.Rs. and others v. Ejaz Ahmed and others (PLD 2021 SC 761).

13. The two learned Advocates namely Mr. Muhammad Ramzan Khan, Advocate Supreme Court of Pakistan and Ms. Tahira Bukhari, Advocate High Court have filed Wakalatnama on behalf of the applicant/ petitioner, but both the counsel did not appear; it is quite surprising that not a single reason has been mentioned in the C.M. for restoration that why the counsel for the petitioner did not appear; the application by mentioning the reasons in paras Nos.2 and 6 is based upon unspecific, vague and generalized assertions which cannot by any stretch of the language be termed as sufficient cause.

14. As the applicant/petitioner was represented by two learned counsel, the applicant/petitioner or one of his counsel was bound to appear but neither the applicant/petitioner nor his counsel appeared and no reason for non-appearance of counsel is mentioned in the C.M. In this regard reliance is placed on a case reported as "Syed Junaid Akhtar and others. v. Managing Director/Chairman and others" (PLD 2008 SC 130), wherein Hon'ble Supreme Court of Pakistan has held as under:- "In this case, irrespective of Mr. Gohar Iqbal, Advocate, Mirza Sarfraz Ahmad, Advocate was also engaged for appearing on behalf of the petitioner in the learned High Court. On the said date of hearing neither Mr. Gohar Iqbal, Advocate nor Mirza Sarfraz Ahmad, Advocate or Syed Junaid Akhtar, attorney of the petitioner appeared before the learned High Court. Learned counsel for the petitioner has mainly relied upon the affidavit of Mr. Gohar Iqbal, Advocate that since he had to appear in the instant case, as such, Mirza Sarfraz Ahmad, Advocate or attorney was not supposed to appear. We are not agreed with the above contention. Mirza Sarfraz Ahmad, Advocate being counsel of the petitioner was equally responsible to explain his absence and file affidavit to explain his absence and support the ground of Mr. Gohar Iqbal, Advocate. Even otherwise, the attorney of the petitioner was also equally responsible to pursue his case. This Court in the case of Zulfiqar Ali v. Lal Din and another (1974 SCMR 162) held that mere engagement of a counsel will not absolve the litigating party to pursue its case diligently and in case the appeal is dismissed for non-prosecution, not only absence of the counsel is to be explained to the satisfaction of the Court, but also the absence of the appellant who is equally responsible for pursuing the case should be explained."

15. In view of above discussion, it has been established that neither the applicant/petitioner nor his counsel appeared when the case was called, no sufficient cause of non-appearance of the applicant/petitioner is mentioned in the C.M., no reason for non-appearance of counsel for the applicant/petitioner is mentioned in C.M., hence instant civil miscellaneous application for restoration of Writ Petition No.4615 of 2021, is dismissed being not maintainable. SA/97/Isl. Petition dismisse