1983 PLP 1230 (CLC)

2. An application for re‑admission of the appeal was filed under Order XLI, rul- 19, C.P.C. supported by affidavit of the Advocate for the appellant wherein it was deposed that due to a mistake he had noted the date of hearing of the appeal in diary as on 6th August, instead of 5th August, 1980 and that due to the said bona fide mistake be could not appear in Court on 5th August, 1980 when the appeal was taken up for hearing. According to the learned Counsel for the appellant the diary was produced before the learned lower appellate Court in proof of his affidavit. The learned lower appellate Court however by order passed on 2nd February, 1981 dismissed the application. It was observed that earlier also on 27th January, 1978 the appeal was dismissed for default but was restored by an order passed on 24th July, 1980 on the ground that a wrong date had been mentioned in his diary and that the default in appearance was not deliberate. Thereafter by order passed on 31st July, 1980 by consent of Advocates for the parties, hearing of the appeal was adjourned to 5th August, 1980 when the Advocate for the appellant was absent and consequently the appeal had been dismissed for default and non‑prosecution. The learned Appellate Court then pro ceeded to hold that since this is the second time that the appeal was dis missed for non‑prosecution and the Court waited for him till 1.25 p. m. he did not see that the ground mentioned in the affidavit by the Counsel for the appellant to the effect that he had noted a wrong date in his diary, to be a sufficient ground to re‑admit the appeal. Accordingly the above‑mentioned application was dismissed.

3. Against the above order this second appeal has been filed under section 15(4) of the then West Pakistan Urban Rent Restriction Ordinance, 1959.

4. Mr, Munawar Abbas the learned Counsel for the appellant pro duced before me the diary showing that the appeal was noted in his diary by mistake as if fixed for hearing on 6th August, 1980. He accordingly on the basis of the affidavit .filed in the lower Court submitted that it was a fit case where the learned Court should have allowed his application and ought to have readmitted the appeal as sufficient cause had been disclosed. 1 have heard the learned Counsel for both the parties at length and with their assistance have gone through the record. So far as the plea advanced in support of the application for re‑admission of the appeal on the ground that the date of hearing by mistake on tile part of Advocate for the appel lant, was noted in his diary as if the appeal was fixed for hearing on 6th August instead of 5th August, 1980, I have no hesitation in accepting the same as a sufficient cause within the meaning Order XLI, rule 19, C. P. C. as it is supported not only by the affidavit of the Advocate but also his diary itself. 5. 1 am fortified in conclusion reached as above by the principle authoritatively laid down by the Honourable Supreme Court of Pakistan to Municipal Committee, Rawalpindi v. Muhammad Sarwar Khan (1968 S C M It 817). In the said case after referring to the observations made in the case of Salamat Bibi v. Settlement Commissioner (P L D 1966 S C 467) to the effect that the determination of the question as to whether there is or is not a sufficient cause iii a particular case is no 'doubt a matter within the discretion of the Court itself, but it has to be remembered that this discretion too, like all other discretions exercised by Court must be exercised in judicious manner having regard to all the facts and circumstances of each case and that some distinction should be made between negligent or careless performance of duties by Counsel unavoidable omissions particularly when such omission is due to no fault of his and he has taken all reasonable steps possible in the circumstances to avoid any disrespect or lack of courtesy to the Court, held : "In the facts and circumstances of this case the bona fide mistake of the counsel and his clerk would amount to sufficient cause for resto ration of the appeal. It may be pointed out here that the mistake referred by the Honourble Supreme Court in the above case which resulted in non‑appearance of the Advocate on the date of hearing was a mistake on the part of the clerk of the Advocate who had entered the date in his diary as 3rd March, 1961 instead of 1st March. 1961.

6. The principles laid down by the Honourable Supreme Court in they above‑mentioned case of Municipal Committee would apply with full force to the facts of this case. The learned Counsel for the Respondent however submitted that earlier also when the appeal was dismissed for default for non‑appearance of the Advocate for appellant on 27th January, 1978 a similar plea was taken to the effect that the Counsel had noted a wrong date in his diary, but on that occasion the appeal was allowed to be restored. The Counsel contended that this plea cannot be accepted for default on the second occasion. I am aforesaid this argument of the learned Counsel for the respondent cannot be accepted. Merely because on the previous occasion as well the case was dismissed for default and was restored on a similar explanation advanced by the Counsel for the appellant, would be no ground for refusing to set aside the ex parte order and readmit the matter as laid down by the Honour able Supreme Court of Pakistan in the case of Jan Muhammad v. Abdul Ghafoar (P L D '1966 S C 461) where the Honourable Supreme Court observed :‑ "Again the fact that this was the second occasion on which they were asking for restoration of their suit which had been dismissed for default could hardly be of weight in determining the merits of their second application for restoration."

7. The learned Counsel for the Respondent then raised an objection to the maintainability of the appeal itself under subsection (4) of section 15 of Ordinance of 1959. In order to appreciate the arguments of the learned Counsel, it would be relevant to reproduce herein below subsection (4) of section 15, which provided :‑ Subsection (4):‑`Any party aggrieved by an order passed on appeal by the Appellate Authority appointed by the Government under clause (a) of subsection (1) and if an Appellate Authority has not been appointed in respect of any area of class of cases, any party aggrieved by an order of the Controller may within 30 days from the date of the Order of Appellate Authority or, as the case may be, of the Con troller, prefer an appeal in writing to the High Court and the decision thereof shall be final." Relying upon the above‑quoted provisions of law, the learned Counsel for the Respondent submitted that the present appeal against the impugned order passed by the first Appellate Court rejecting the application made for readmission of the appeal is aii order passed "in appeal" and is not an order "on appeal" within the meaning of section 15(4) reproduced above, and thus is not an order against which an appeal could be preferred to the High Court. The learned Counsel in support of his arguments referred to the case of Din Muhammad v. Hidayat Hussain (P L D 1968 Lab. 207) where Mr. Justice Karam Elahi Chauhan (as he then was) in an elaborate judgment after reviewing a large number of cases, held : "An order passed by the appellate authority refusing to set aside his appellate ex parte order is not an order passed "on appeal" and therefore was not appealable to the High Court under section 15(4) of the Ordinance." The submission of the learned counsel for the respondent also finds support from the case of Ghulam Mustafa v. Waqar Ahmad (P L D 1980 S C 9) where the Honourable Supreme Court while holding that under section 15(4) an appeal under the first part would obviously lie from an order passed "on appeal." from the first appellate forum, observed as follows : "An appeal" under the first part obviously would be from an order passed on appeal by the first appellate forum. The appeal under the first part of this provision would be filed by a party who is aggrieved by an appellate order. The orders mentioned in subsection (1) of section 15 under sections 4, 10, 12 and 13 would undoubtedly be relevant when deciding the second appeal on merits but the order brought under challenge directly in the second appeal would be the one passed by the appellate forum. It is also clear from "the language of the statute. We do agree that it would not be every and any order passed by the appellate forum in exercise of the first appellate jurisdiction which can be brought under challenge. A distinction would have to be made between orders passed "on appeal" and other orders including those passed in the appeal, in exercise of the appel late jurisdiction. But it cannot be denied that a remand order which takes the lis out of the ambit of the appellate forum and sends it to the lower forum for fresh adjudication, is an order passed on appeal. A useful discussion on this aspect of the matter can be found in Din Muhammad v. Hidayat Hussain." The case of Din Muhammad P L D 1968 Lab. 207 was thus cited with approval by the Honourable Supreme Court.

8. The upshot of the above discussion is that this appeal fails on the ground that no appeal lies from an order passed by First Appellate Court in exercise of its jurisdiction under subsection (1) of section 15 of the Ordinance refusing to set aside his appellate ex parte order and rejecting the applica tion for re‑admission of the appeal. The appeal is accordingly dismissed as not maintainable. In the circumstances of the case there shall however be no order as to costs. M. Y. M. Appeal dismissed.