2012 PLP 1905 (YLR)

QAISER RASHID KHAN, J.

Aggrieved from the judgment and order dated 24-9-2011 of the learned Additional District Judge, Ghazi, Camp Court, Haripur vide which he dismissed the application of the appellant for restoration of Suit No.10/1 of 2007, the appellant has filed the instant appeal.

2. Brief and essential facts leading to the present appeal are that on 4-6-2007, the appellant filed a recovery suit for an amount of Rs.500,000 under Order XXXVII of Civil Procedure Code, 1908 against the respondent before the learned Additional District Judge, Haripur, which was decreed in favour of the appellant on 28-3-2008, after refusing leave to appear and defend the suit to the respondent. The present respondent filed R.F.A. No.14 of 2008 before this Court, which was allowed and the judgment and decree dated 29-3-2011 were set aside vide judgment dated 22-11-2010 and the case was remanded back to the trial court with the direction to re-decide the application dated 6-7-2007 for leave to appear and defend the suit on merits. After remand, the suit of the appellant was dismissed in default of appearance vide order dated 2-7-2011. The appellant filed application for restoration of the suit on 30-7-2011, to which reply was filed by the respondent and finally the learned Additional District Judge, Ghazi, Camp Court, Haripur dismissed the same vide judgment and order dated 24-9-2011, hence the appeal.

3. The learned counsel for the appellant argued that the absence of the appellant on the date fixed for hearing on which the suit was dismissed was neither wilful nor deliberate but due to some misunderstanding regarding, the date fixed; that valuable monetary interests of the appellant are involved in the matter and there is every likelihood of the success of his suit before the learned trial court: that as per decision of the Hon'ble superior Courts, the cases should be decided on merits and not dismissed on technical grounds. In support of his arguments, he placed reliance on PLD 2003 Peshawar 217 and 2004 MLD 923 Lahore.

4. Arguments heard and available record perused.

5. The record shows that the suit of the appellant was initially decreed by the learned trial Court on 28-3-2008 when the leave to appear and defend the suit was declined to the respondent. The said judgment and decree was set aside by this court in appeal on 22-11-2010 with the directions to the learned trial court to decide the leave to defend application afresh and the parties were directed to appear before the learned trial court on 27-11-2010.

6. It was thereafter that the appellant presumably lost interest in his suit when the case was dismissed for non-prosecution on 2-7-2011. The one and only reason advanced by the appellant in his application for restoration of the suit is that "in his mind the date of hearing before the court was 4-7-2011 when in fact it was 2-7-2011." No ground was urged as to why his counsel was absent on the said date. The appellant has stressed in his application that he came to know on 4-7-2011 about the dismissal of his suit then why he waited for all those twenty five days to submit his restoration application on 30-7-2011. Next comes the conduct of the appellant in pursuing, his case before the learned trial court. As evident from the available record as well as the impugned judgment of the learned trial court, the appellant never for once appeared before the trial court to pursue his recovery suit so much so that lastly the learned trial court was constrained to issue directions for his personal appearance but the appellant still failed and neglected to appear before the learned trial court. The judgments cited by the learned counsel for the appellant are distinguishable from the facts and circumstances of the present case. With such chequered background of the case, the arguments advanced by the, learned counsel for the appellant are of little avail.

7. For reasons stated above, the instant appeal being devoid of any merit is dismissed in limine. K.M.Z./169/P Appeal dismissed.