1999 PLP 3453 (MLD)

Nasir Kazmi for Syed Maqbool Hussain Shah for Respondents Date of hearing: 25th March, 1998 This order will dispose of F.A.O. No. 192 of 1989, wherein order, dated 12-12-1988, of the learned Additional District Judge, Sheikhupura, dismissing an application for restoration of appeal, has been called in question.

2. Mst. Khurshid Begum, appellant herein, filed an appeal against the judgment and decree, dated 21-9-1987, passed by Mr. Nasim Hassan Malik, Civil Judge Ferozewala. The appeal was dismissed for non-prosecution on 18-7-1988. An application for restoration of the appeal was filed, on the ground that learned counsel for the appellant was busy in Lahore High Court, in the cases titled "Muhammad Sharif v. Rehmat Ali etc." (C.R.No.877 of 1983) and "Ghulam Farid v. Falak Sher" (CR.674-D/88) and, therefore, he could not attend the proceedings in appeal, at the time when the same was called and dismissed for non-prosecution. The application was also supported by an affidavit. .

3. The learned Additional District Judge, dismissed the application vide order, dated 12-12-1988, as in his view, the application was barred by time and no sufficient grounds was made out for restoration of appeal.

4. In this appeal, order, dated 12-12-1998, has been assailed

5. Learned counsel for the appellant submitted, that sufficient ground was made out for restoration of appeal and that the engagement of a counsel before the superior court, at the relevant time, is always deemed as reasonable ground for restoration of the appeal. He further submitted, that the application was within time, as the month of August was summer vacation and no application could be filed in that month. On the opening day, the Presiding Officer was on leave while second September being Friday and a holiday, the application was entertained on 3-9-1988 and, therefore, according to the learned counsel, there was sufficient grounds for condonation of delay, and for disposal of the application on merit: Conversely, learned counsel for the respondent defended the order.

6. From the order passed by the learned Additional District Judge, it is evident, that no issue was framed on the point of sufficient cause nor any opportunity of evidence was allowed to the appellant. On being questioned, learned counsel for the respondent, did not deny, that no evidence was recorded and the application was decided simply on arguments. The order indicates, that the learned Additional District Judge was persuaded by the alleged conduct, prior to the date of dismissal of the appeal and instead of determining the existence or otherwise of sufficient clause, for non-appearance, on the date of dismissal of appeal, he rejected the application by taking in consideration, irrelevant factors. The only question to be examined was; as to whether there was sufficient ground for non-appearance of the learned counsel, on the given date and whether his engagement in the superior Court on the relevant date could be a ground for restoration of appeal. It is repeatedly held, that as .a matter of preference, the Advocates are expected to appear before the superior Court and A if for some unforeseen reason they are struck up before the superior Court, then it can be a reasonable ground for non-appearance before the Court below and seeking restoration of the appeal, dismissed on the ground of non-prosecution.

7. Be that as it may, since the application had been contested, it was necessary, for the learned Additional District Judge, to frame an issue, allow the appellant with an opportunity of evidence and to decide the application thereafter. Even for the delay, there was explanation given, which was requiring inquiry. He should have been appreciated, that the valuable rights of the parties 8 were involved and serious allegations were levelled in the appeal, and, therefore, the propriety demanded that the case should have been decided on merits, rather than non-suiting the parties on technicalities. It is also ruled, that generous consideration should be given, to the applications for restoration of cases.

8. The impugned order, having been passed in violation of the rule laid by the superior Courts and also the rule of natural justice cannot be sustained.

9. For the reasons above, this appeal is accepted, the impugned order is set aside and the case is remanded to the learned District Judge. In result, the application for restoration of appeal, shall be deemed to be pending, which shall now be decided in accordance with law and on its own merits, by the learned District Judge, after framing issues and allowing the parties with opportunity of evidence.

10. The parties shall appear before the learned District Judge, Sheikhupura on 17-4-1998, who will decide the application for restoration, within four months, in the light of the observations hereinabove. No order as to the costs. Q.M.A./M.A.K./K-59/L ???????????????????????????????????????????????????????????????????? Order accordingly.