Dismissal of appeal for non-prosecution

2021 CLD 775 SECURITIES-AND-EXCHANGE-COMMISSION-OF-PAKISTAN Judicial Precedent

S. 33Appeal to the Appellate Bench of the CommissionDismissal of appeal for non-prosecutionScope

Appellant assailed order passed by Commissioner, Securities Market Division under S. 152 of the Securities Act, 2015, read with Regln. 11 of the Securities Brokers (Licensing And Operations) Regulations, 2016

Validity

Appeal, on the first date of hearing, was adjourned on the request of appellant and the matter was re-fixed for hearing

Case was called on the said date and time; the department's representatives were present, however, the appellant failed to appear before the Bench nor any request for adjournment was received on his behalf

Hearing notice clearly stated that in case of non-appearance of either appellant or respondent before the Bench, the case could be decided in their absence

Appeal was dismissed for non-prosecution.

2019 CLD 1266 SECURITIES-AND-EXCHANGE-COMMISSION-OF-PAKISTAN Judicial Precedent

S. 33AppealDismissal of appeal for non-prosecution

Appeal was called for hearing; department representatives were present, however, the appellants and their counsel failed to appear nor they sought adjournment

Appeal was dismissed for non-appearance and non-prosecution.

2018 CLD 1332 SECURITIES-AND-EXCHANGE-COMMISSION-OF-PAKISTAN Judicial Precedent

S. 33AppealDismissal of appeal for non-prosecution

When appeal was called for hearing, representative of respondent was present, however, neither anyone appeared on behalf of the appellant nor any request for adjournment was received

Matter was kept pending till the close of official timings, however, the appellant failed to enter, despite calls

From the conduct of the appellant, it appeared that appellant was not interested in pressing the present appeal

Appeal was dismissed for non-appearance and non-prosecution, in circumstances.

2017 CLD 513 SECURITIES-AND-EXCHANGE-COMMISSION-OF-PAKISTAN Judicial Precedent

S. 33Dismissal of appeal for non-prosecution

Appellant on the date fixed for hearing, failed to appear through his authorized representative, thereafter two hearings were adjourned on the request of representative of the appellant

Appellant again failed to make appearance on another adjourned date of hearing

Appeal was re-fixed for final hearing

Matter was kept pending till 5.00 p.m., but appellant failed to enter appearance despite repeated calls

Such conduct of appellant showed that he was not interested in pressing the appeal

Appeal was dismissed, for non-appearance and non-prosecution, in circumstances.

2017 PTD 1228 INLAND REVENUE APPELLATE TRIBUNAL OF PAKISTAN Judicial Precedent

S. 131Appellate Tribunal Inland Revenue Rules, 2010, R.22Dismissal of appeal for non-prosecutionCounsel represented the taxpayer, but none appeared on behalf of the departmentDepartment was called thrice to contest the case no one appeared and no adjournment application was submitted

Taking a lenient view and in the interest of justice, case of the appellant/department was placed at last number and after hearing all other cases, appellant was again called to appear for hearing, but no one appeared

Tribunal, addressed a letter to the Chief Commissioner regarding such non-appearance, despite that no effective measures had been taken by the department and no serious attention had been given by the high ranking authorities of Chief Commissioners

Such attitude of the concerned Commissioner, was not expected

Appellate Tribunal Inland Revenue, observed that Tribunal like any judicial body, had a number of procedural requirements which were to be complied with before appeal could be heard

Several departmental representatives, even some of them most senior and highly qualified had neglected to comply with requirements, of law, decency, decorum of the court craft and court culture; bypassing the interest of the revenue, with the result that their matters get adjourned and they wasted their own time and that of the department and the Bench of the Tribunal

Despite proper service of notice of hearing, in the present case, none appeared on behalf of the department nor submitted any adjournment application

Appeal was dismissed in default under R.22 of the Appellate Tribunal Inland Revenue Rules, 2010.

2016 SCMR 2009 SUPREME-COURT Judicial Precedent

O. XLI, R. 17(1)Dismissal of appeal for non-prosecutionScope

Order sheet of the Court did not reflect clearly as to what matter was fixed for hearing before the Court on the date on which appeal was dismissed for non-prosecution

Order XLI, R. 17(1), C.P.C. specifically required that it was on the date when the appeal was called for hearing and appellant failed to appear, the Court may make an order of dismissing the appeal

In the present case, two orders passed by Appellate Court prior to the date on which appeal was dismissed for non-prosecution, were simple order of adjournment without noting that the appeal had been adjourned for hearing on the next date

In such circumstances, order for dismissal of appeal for non-prosecution passed by Appellate Court would not be an order under O. XLI, R. 17(1), C.P.C. for that on the date of dismissal of appeal, the record did not show that the appeal itself was fixed for hearing

Appellant could not be made liable for the mistake of the court

Appeal was allowed accordingly.

2013 PLC 44 LABOUR-APPELLANT-TRIBUNAL-PUNJAB Judicial Precedent

S. 47Dismissal of appeal for non-prosecutionApplication for restoration of appealAppeal was pending adjudication before the High Court in absence of the TribunalAppeal was transferred to the Tribunal on its re-establishment

Appeal continued to be pending, but no one appeared on behalf of the appellant for more than one year and Tribunal dismissed the appeal for non-prosecution

Appellant/ applicant went into deep slumber and filed an application for restoration of appeal almost after a year

Effect

Huge delay of more than one year had not at all been explained properly

Law required each day's delay to be explained, but no cogent or confidence inspiring explanation was given for such delay

Submission of counsel for appellant was that advocate who was incharge of the case prior to the entrustment of appeal to other counsel, did not properly pursue the matter and did not inform about the dismissal of the appeal for non-prosecution in time

Counsel had contended that delay being not intentional or deliberate, same could be condoned

Such contention was repelled as it was the requirement of law that if the counsel lately engaged in the case was not present, counsel engaged earlier should have taken charge of the case and should have appeared

Even otherwise, if the counsel for the appellant could not appear on the given date before the court, duty was cast upon the appellant to appear in the absence of counsel

Appellant was not absolved from appearance in the court

Applicant/appellant having failed to show any reasonable, cogent or plausible explanation for the absence of his counsel or for himself, application for restoration of appeal, was dismissed, in circumstances.

2013 CLD 423 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 10Application for leave to defend the suitDismissal for non-prosecution

Where defendant despite ample opportunity, fails and or neglects to appear and satisfy court that substantial question of law and fact have been raised in leave to defend application that necessitate recording of evidence, in default of his doing so, Banking Court in terms of S.10(1) of Financial Institutions (Recovery of Finances) Ordinance, 2001, read with provisions of Civil Procedure Code, 1908, may in such situation dismiss the application for non-prosecution and or ignore the same

Result in either of eventuality is same and by virtue of deeming clause, allegation of fact in plaint deems to be admitted and Banking Court may pass decree in favour of plaintiff on the basis thereof or such other material as Banking Court may require in the interests of justice.

2013 CLD 423 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 10Application for leave to defend the suitDismissal for non-prosecutionMark up, calculation ofAppointment of Local CommissionerApplication for leave to defend the suit filed by defendants was dismissed by Banking Court for non-prosecutionValidity

Defendants filed leave to defend application but neglected, failed and defaulted to purse leave application, this failed to obtain leave within contemplation of S.10(1) of Financial Institutions (Recovery of Finances) Ordinance, 2001

Despite several and last opportunity given, consequently the application was dismissed and suit on the basis of facts pleaded and material placed along with plaint, was considered and suit was decreed

Defendants were not able to make out any case for interference and High Court declined to take any exception to judgment and decree passed by Banking Court as regard principal amount

High Court appointed Local Commission to calculate mark up on outstanding principal amount in accordance with finance agreement for subject facility

Appeal was dismissed accordingly.