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Letters Patent Appeal No. 217 of 1965, decided on 1st March 1966.

Art. 98 read with Civil Procedure Code (V of 1908), O. IX, rr. 3 & 4‑Writ petition dismissed in default‑Request on same day for restoration usually accepted in absence of special reasons‑Explanation for non appearance should be given not only by party concerned but his Advocate as well‑Two counsel engaged in case‑Explanation to be submitted by both.

Saeed Akhtar for Appellant.

Date of hearing : 3rd February 1966. (Motion)

‑The writ petition giving rise to the present appeal was dismissed on the same day by the same learned Judge as W. P. No. 1798‑R of 1962. Both the writ petitions, giving rise to L. P. A. No. 394 of 1965, which we have already disposed of today, and the present one, relate to the same property. This order should be read along with the order that we have passed in L. P. A. No. 394 of 1965.

2. We propose to deal only with the circumstances of this case as to why we are not inclined to interfere with the discretion of the learned Single Judge refusing to restore the writ petition dismissed in default.

3. The ground for the restoration of the writ petition is that Mr. Saeed Akhtar, the learned Advocate for the appellant, was busy before Mr. Justice Ortcheson and when the case was called before the learned Single Judge the petitioner (appellant in the present appeal) went to inform him (Mr. Saeed Akhtar). It took him (appellant) about three to five minutes to come back to the Court‑room of the Learned Single Judge when he learnt that the writ petition was dismissed in default. On this ground it was submitted that the absence of the petitioner or his counsel was not deliberate.

4. In order to consider the question whether there was sufficient cause or not, we would reproduce the order of the learned Single Judge, which runs as under :

"I see no reason to restore the case as no intimation was given to the Court by any person on behalf of the learned counsel that he is busy in another Court and would be appear ing in this Court when free from there. The client or the learned counsel's clerk did not appear at all. The application is dismissed."

In view of the order of the learned Judge in Chambers the allega tion, that the appellant came back within three to five minutes to the Court‑room of the learned Judge when he learned that the peti tion was dismissed in default, appears to be doubtful. There is a positive observation by the learned Single Judge that the appellant or the learned counsel's clerk did not appear at all. It was but natural for the appellant, if he had come back within three to five minutes of the case having been called two or three times to have told the Court or at any rate to the Reader that his Advocate was engaged before Ortcheson, J. Moreover there is no explanation on behalf of the learned Advocate as to why he did not come after he had finished the case before Ortcheson, J. and explain the reason for his absence to the learned Single Judge. As we have already observed usually when an Advocate asks for restoration of a matter dismissed in default on the same day, the Court does accept the request in the absence of any special reason.

5. In order to explain that there was sufficient cause for the absence the explanation should be that of the party concerned and also of the Advocate or Advocates, if there are more than one. In the present case, the explanation for the absence is only on behalf of the appellant and that of Mr. Saeed Akhtar, Advocate. In this case two Advocates had filed power of attorney, namely, Mr. Saeed Akhtar and Mr. Sher Bahadur. Mr. Slier Bahadur appeared four times on various dates in the Court as would appear from the order‑sheet of the writ petition while Mr. Saeed Akhtar appeared only twice. He appeared for the second time on 11‑10‑1965 in support of the application for restoration of the writ petition. No. explanation whatsoever has been given as to why Mr. Sher Bahadur did not appear on 7‑10‑1965 when the writ petition was called and dismissed in default. It was necessary to give some reason or other as to why Mr. Sher Bahadur did not appear on that date when Mr. Saeed Akhtar had as many as twelve cases fixed for that date in this Court. It was expected of Mr. Saeed Akhtar when he was so busy on that date to have taken some precaution to see that Mr. Sher Bahadur appears before the learned Single Judge.

6. For the reasons given above, we do not see any reason to interfere with the discretion exercised by the learned Single Judge and dismiss the appeal in limine.

K. B. A. Appeal dismissed.

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