2012 PLP 123 (SCMR)

NASIR-UL-MULK, J.

The appellant had filed writ petition before the Rawalpindi Bench of the Lahore High Court (No.1018 of 2000) against die cancellation by respondent No.1 of allotment of an industrial plot in District Jhelum on the ground of his failure to set up a project within the period stipulated in the letter of allotment. The Court admitted the petition to full hearing and passed an order of status quo. The writ petition was dismissed for non-prosecution on 24-5-2006 and for its restoration, the appellant filed C. M. Nos. 1283 and 1284 of 2006. These applications were also dismissed for non-prosecution on 24-9-2008. Thus the appellant filed another application (C.M. No.691 of 2008) for the restoration of C.M. Nos.1283 and 1284 of 2006. In the said application, twofold reasons were given for the absence of the counsel for the appellant before the High Court. Firstly, that on the date fixed, the learned counsel was unwell; that he had no notice of the fixation of the case. The application was supported by an affidavit of the counsel. The High Court did not accept either of the pleas, holding that the averment of the learned counsel of his indisposition was not duly supported by medical certificate and that his being unaware of the fixation of the case was not a tenable ground for restoration. Consequently, by the impugned order of 26-3-2009, the High Court dismissed C.M. No.691 of 2008, against which, leave to appeal was granted by this Court on 20-7-2009 in the following terms:-- "

2. In these circumstances and in view of the fact that the Courts generally are inclined to decide the cases on merits, leave is granted, inter alia, to consider whether the learned High Court has correctly dismissed petitioner's application for restoration of C.M.A. 1283 of 2006 wherein the prayer was made for restoration of the writ petition."

2. We heard learned counsel for the parties and have perused the relevant documents. Learned counsel for the appellant submitted that affidavit of the counsel for the appellant before the High Court regarding his illness should have been accepted on its face value and so also his statement that he was unaware of the fixation of the case. He contended that the Court always leans in favour of disposal of cases on its merits and thus, the High Court ought to have, at least, restored the application for restoration of the writ petition. In support of his arguments, the learned counsel relied upon "Zeenit Textile Mills Ltd. v. Government of Punjab (1987 SCMR 770), Shaukat Hussain v. Qaisarah Begum (1988 SCMR 263) and Ghulam Mustafa Shah v. Haji (1993 SCMR 256)".

3. Mian Abdul Rauf, learned counsel for the respondents, supporting the impugned order argued that listing of the case and mention of the name of the counsel for the appellant in the cause list issued by the High Court for the relevant day was sufficient notice to the appellant and his counsel. That the appellant had been negligent in pursuing his case as not only his writ petition but also the applications for its restoration were dismissed for non-prosecution.

4. The Courts are generally inclined to have the lis before it decided on merits. The admission of the appellant's writ petition to full hearing indicates that, prima facie, he had a good case. The factual aspects of the grounds raised by the appellant in the applications for restoration had not been countered factually by the respondents. Ordinarily the affidavit of a counsel about his illness, in the absence of a counter affidavit, is taken on its face value and accepted. It does not appear from the record that the High Court had, at any stage, enquired the learned counsel to support his ground of illness by a medical certificate. The explanation furnished by the counsel of his absence on account of indisposition thus ought to have been accepted.

5. To cut short the litigation process, instead of remanding the case to the High Court to reconsider C.M. No. 691 of 2008, we would allow the same, however, on payment of cast of Rs. 15,000 to be paid by the appellant before hearing of the his applications by the High Court. The appeal is, therefore, allowed. The impugned order dated 26-3-2009 is set aside and the application, C.M. No. 691 of 2008, is allowed. Resultantly, C.M. Nos. 1283 and 1284 of 2006 are restored, which are to be decided by the High Court on their own merits. M.H./F-17/SC Appeal allowed.