P L D 2004 Karachi 614 (PLP)

This is an application under section 151 read with Order IX, Rule 9, C.P.C., for restoration of the instant petition which was dismissed on 11-2-2004 as the petition and his advocate remained absent when the case was called. This application was filed on 12-2-2004 i.e. the following day of the questioned order and .was supported by the affidavit of Mr. S. Sitwat Hussain Nizai learned counsel for the petitioner stating therein that non-appearance before the Court was neither deliberate nor intentional on the part of petitioner or his counsel, but it was due to bona fide unawareness about the date of hearing of the matter, with the result, the matter remained unattended. The application was resisted by filing counter affidavit in which the Assistant Director, Banking Instruction Department, State Bank of Pakistan stated that it was the duty of advocate for petitioner to pursue the subject matter. According to him, the application for restoration is misconceived and incorrect.

2. We have heard learned advocates Mr. S. Sitwat Hussain Niazi for petitioner, Mr. S. Zaki Muhammad for respondent No. 1, Mr. Abdul Qadir for respondent No.2 and Mr. Anwar A. Siddiqui for respondent No.3.

3. Mr. Niazi relying on Abdul Basit Zahid v. Modaraba Al-Tijarah (2000 MLD 2067) and Muhammad Khan v. Shabarati (PLD 1995 Karachi 267) submitted that if the matter remained unattended on account of noting wrong date of hearing, the same may be restored. Mr. Abdul Qadir learned counsel for the State Bank of Pakistan opposed the restoration on the ground that names of the parties and their advocates were printed in the cause list, they were, therefore, not absolved of their duty to attend the Court. According to him, the grounds taken in the application are vague and further section 151, C.P.C. is not applicable to such matter. He relied on Allah Bachai v. Fida Hussain (2004 SCMR 615) and Muhammad Munawar v. Ch. Khurshid Alam (1978 SCMR 266) wherein restoration was declined. Mr. S. Zaki Muhammad also opposed the application. Mr. Anwar A. Siddiqi contended that no cogent reason has been shown to justify the absence.

4. We are of the considered view that technically speaking the absence could not reasonably be explained by saying that date was not noted or it was not supplied by the office. It is a normal procedure that particulars of the parties and their advocates are mentioned in the cause list which on publication and distribution is deemed to be sufficient notice. However, the other contention of learned counsel for the petitioner can be entertained with favourable consideration since he had filed the instant application on the following day of passing of the' impugned order. Besides, the petitioner is a trust catering for a large section of public, therefore, it would be expedient in the interest of justice if the matter is decided on merits. It is a settled proposition that the Courts have always preferred decision of a cause on merits rather than passing an adverse order keeping in view the technicalities. In this context reliance may be placed on Rasheed Ahmed v. Province of Punjab (2004 SCMR 707) wherein the following observations were made:-- "Even otherwise, it is an established practice of this Court that the cases should be decided on merits and technical knock out should sparingly be resorted to. In the case in hand, discretion has been exercised by the learned Single Judge of the High Court to advance the cause of justice ...."

5. In result of forgoing discussion we allow this application subject to cost of Rs.20,000 to be deposited with Nazir of this Court within 15 days, to be equally shared by the contesting respondents. H.B.T./M-113/K Application allowed.