2003 PLP 488 (MLD)

Muhammad Zubair Qureshi for Defendant No. 1(a). Sardaruddin Qureshi for Defendants Nos.2 and

3. Nemo for the Remaining Defendants. This suit for declaration, cancellation of instrument, injunction and administration was dismissed by this Court for non‑prosecution vide order dated 15‑2‑2000. Through the listed C.M.A. No. 1551 of 2000 the plaintiff has prayed for restoration of this suit. The application is accompanied with the affidavit of Mr. Mukhtar Ahmed Kuber, Advocate wherein it has been stated that on 15‑2‑2000 the suit was dismissed at 9‑45 a.m. and at that time Mr. Salim Salaam Ansari the senior counsel representing the plaintiff in this suit was busy before the Bench of Mr. Justice S. Ahmed Sarwana as his case was fixed there at Serial No.7 for arguments. The application is also accompanied with the copy of cause list confirming the fact that one case of Mr. Salim Salaam Ansari was fixed before the Bench on that day. This application is opposed by defendant No.1 and a counter -affidavit has been filed wherein it has been stated that the application is mala fide, motivated, false and untenable in law. It has further been stated that it was the duty of the associated Advocate of Mr. Salim Salaam Ansari to deliver engagement slip early in the morning to the Reader of the Court which was not done by him and further the application is not supported by the affidavit of plaintiff and therefore, no case for restoration is made out. Mr. Salim Salaam Ansari, Advocate for plaintiff in his arguments urged that law favours adjudication of cases on merits while in the present case when the suit came up for evidence for the first time it was dismissed in the early Court hours which resulted in injustice to the plaintiff. He further urged that the restoration application was moved within ten days' time from the date of dismissal of the suit for non-prosecution which shows keenness of the plaintiff to pursue the case, therefore, suit may be restored. On the other hand Mr. Zubair Qureshi has strongly opposed this application and contended that neither the application is supported with the affidavit of plaintiff nor it has been stated that why the plaintiff was not present in Court on the relevant date of hearing when the case was fixed for evidence. In these circumstances negligence of plaintiff is clearly spelted out which makes the application liable to be dismissed. In support of his contention, learned counsel placed reliance upon PLD 1998 Kar. 154; 1990 CLC 206 and 1995 CLC

461. Mr. Sardaruddin Qureshi, Advocate for defendants Nos.2 and 3 has adopted the arguments of Mr. Zubair Qureshi. I have considered the arguments advanced before me and perused the case record which reveals that in this suit issues were framed on 20th April, 1998, same were recast by the Court on 17‑1‑2000 and it was for the first time that the case was fixed before the Court for evidence on 15‑2‑2000. It has not been disputed by the defendants that Mr. Salim Salaam Ansari, Advocate was busy on the relevant date before another Bench and that he had deputed Mr. Mukhtar Ahmed Kuber to submit such slip before the learned Judge before whom the suit was fixed on the relevant date viz. 15‑2‑2000. No doubt the absence of the plaintiff has not been explained satisfactorily but considering the facts that valuable rights of the plaintiff are involved in the suit, law favours ad indication of disputes on merits and in this case 15‑2‑2000 was the first date of hearing when the suit was fixed for evidence and dismissed for non‑prosecution in the early Court time, it will not be just and fair that the plaintiff be penalized to that extent that he may not be allowed any further opportunity to seek adjudication of his claim on merits. In the above circumstances listed application is allowed and suit is restored to its original position, subject, however, to payment of cost of Rs.1,000 to be paid to the learned counsel for defendants within two weeks. H.B.T./M‑420/K Suit restored.