P L D 1984 Peshawar 15 (PLP)

The redemption suit of the appellants for possession of the suit land was dismissed by the learned trial Judge on merit after contest between the parties and thereafter the appeal of the appellant was dis missed by the learned Addl. District Judge, Mardan Camp Swabi for non‑prosecution, vide order dated 11‑12‑1980. The appellants then filed application on 11‑1‑1981 before the learned Addl. District Judge for restoration of the appeal. They submitted that their attorney was ad mitted for treatment of his illness in the Khyber Hospital, Peshawar, therefore, he could not remember 'the date of hearing of the appeal. This submission was not weighed with the learned Additional District Judge, therefore, he dismissed the application observing that it was filed after the expiration of limitation vide his order dated 27‑7‑1981 which is impugned in this appeal. I have heard the learned counsel for the parties and perused the record. Per Order sheet dated 26‑10‑1980, the learned Addl, District Judge issued summons to the parties and their counsel for 12‑11‑1980 on which date counsel for the appellants and respondent No. 1 in per son were present, while rest of the respondents had not . turned up for want of service upon them, therefore, fresh notices were issued for 26‑11‑1980. The Process‑Server recorded his report on the back of the notices that Abdul Hamid and Muhammad Sultan appellants were informed but they declined to accept service and respondent No. 9 did not come out of his house, though informed, while Gul Mast and Muhammad Umar Khan appellants were said to be in service. On 26‑I1‑.980 counsel for the appellants and respondent No. 1 in person were present and the case was adjourned to 10‑12‑1980. On 10‑12‑1980 the learned Addl. District Judge passed. the following order :‑ "None present on behalf of the appellants. Respondent. No. 1 present. Counsel for the appellants is absent due to boycott of the Courts, therefore, to come up on 11‑12‑1980." It may be observed that the learned counsel for the appellants should have taken care to know about the date fixed in the case when he did not attend the Court due to boycott. He did not care in this be half, therefore, as on I1‑12‑1980, neither any of the appellants nor their counsel was present while respondent No. 1 was present in person, the learned Addl. District Judge dismissed the appeal for non‑prosecution by the impugned order dated 11‑12‑1980 and thereafter the application of the appellants for the restoration of the appeal was also dismissed as barred by limitation by the impugned order dated 27‑7‑1981. The above resume of facts will show that the learned Addl. District, Judge had, for good reasons, dismissed the appeal of the appellants for non‑prosecution of the case as well as the application for restoration of the appeal having filed after the period of limitation. I do not see any reason to interfere with his impugned orders. The learned counsel for the appellants contended that Anwar appellant who was also attorney of other ‑1 appellants was ill and was admitted in the Khyber Hospital, Peshawar at the material time, therefore, he could not remember the date fixed for hearing of the appeal and as he was unaware of the dismissal of the application for restoration of the case was filed after the expiration of the period of limitation, which may be condoned. It is conceded that the appellant Anwar did not produce any certificate about his admission in the hospital at the material time. Assuming that he was admitted in the hospital, yet he could instruct the other appellants to take care of the case so long as be was under treatment in the hospital. Evidently, this question can be raised by a reasonable man, as the other appellants would have naturally enquired about his health when he was lying in the hospital. There is one more feature of the case which speaks against the appellants. The appellants had engaged counsel and it was the duty of their counsel to attend the case regularly on the date of hearing, but he also chose not to do so. This shows that as the appellants had allowed themselves to demonstrate indolence in the prosecution of the appeal, their counsel also did not bother to pay attention to the case and remained aloof from it. The learned counsel for the appellants contended that on 10‑12‑1980 counsel for his clients did not attend the Court owing to boycott and as the next date of hearing fixed by the learned Additional District Judge in the appeal was not communi cated to him, he cannot be supposed to know the next date to attend the Court. This submission on the face of it is not sensible. Correct that the counsel for the appellants had boycotted to attend the Court, but he seems to have ridiculed his profession when he did not inquire about his case thereafter. Had he cared to know as to what date was fixed in his absence due to his boycott, surely there would have been no occasion for his failure to attend the case on the date to which it was adjourned. This shows his utter lack of interest in the case. It is thus clear to me that the appellants were not conscious to pursue their appeal before the. learned Addl. District Judge diligently and with due care and even they filed application for restoration of the appeal when the period of limitation had already expired. The appellants thus want the Court to put premium on their ignorance and negligence due to which their appeal was dismiss; d for non‑prosecution. If in a case of this nature, the. appeal is restored for decision on merit, it will set a precedent in the like cases and I am of the view that it will then be just a formality to restore cases after the same are dismissed for non prosecution on the application of a party for restoration. This appeal is, therefore, dismissed with no order as to costs. M. A. K. Appeal dismissed