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Civil Petition for Special Leave to Appeal No. K‑7 of 1969, decided on 21st May 1969.
(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, dated the 5th February 1968, in Civil Revision No. 45 of 1965).
Art. 58 (3)‑Dismissal of case due to party's own laches and neglect‑Special Leave to Appeal refused.
Khalid M. Ishaque, Advocate Supreme Court (instructed by petitioner) for Petitioner.
Nemo for Respondents.
Date of hearing : 21st May 1969.
The dispute in this case relates to the alleged sale of a certain immovable property by the petitioner to the respondent No. 1. This dispute was referred to an arbitrator who, it is alleged, without giving any notice of the proceedings made an ex parte award against the petitioner. This award was, however, filed in the Court of the Civil Judge, Shikarpur for being made a Rule of Court. At this stage the petitioner filed objections against the acceptance of the said award but did not appear at the hearing of the matter. The award was, accordingly, made a Rule of Court, by an ex parte order on the 26th January 1961. The petitioner went up in appeal. This was admitted for a regular hearing but again the petitioner did not appear at the time of hearing of the appeal, with the result that the appeal too was dismissed for default on the 18th May 1963.
The petitioner applied for the restoration of the appeal. This was dismissed on merits on the 7th June 1963. He then filed an application for the review of the above order. The same was dismissed on the 12th September 1964, on the following grounds:
(i) That no legal ground for review had been made out as there was neither any mistake nor error apparent on the face of the record nor had any important matter or evidence been discovered which could not have been found at the relevant time after the exercise of due diligence.
(ii) That the dismissal of the appeal was mainly due to the negligence of the petitioner himself who had admittedly taken away the papers from his Advocate.
(iii) That no review lies from an order dismissing an appeal for default.
Against this order the petitioner: went up to the High Court in revision but a learned Single Judge of the High Court refused to interfere as, in his view, neither law nor equity was in favour of the petitioner.
The petitioner has now come up as a pauper for special leave to appeal and Mr. Khalid M. Ishaque; appearing gratis on his behalf, has contended that the petitioner's case has never been heard on merits. If that is so, then it has to be pointed out that it is entirely due to his own fault that the case has not been heard on merits.
We do not know what happened before the Arbitrator but when the award was filed in the Court notices were duly issued to the petitioner. He filed objections but failed to appear before the Court at the hearing. Again when he filed an appeal against the said order passing a decree in terms of the award, he not only did not appear himself at the hearing of the appeal but also prevented his Advocate from appearing by taking away the papers
from him.
It is clear from the above that the petitioner did have ample opportunity of presenting his case before the Court by his own laches and neglect he failed to do so. No injustice has, therefore, been caused to him.
Learned counsel next contended that the learned Additional District Judge was wrong in taking the view that there could be no review from an appeal dismissed for non‑prosecution, because,, this was opposed to the view of his own High Court, in the case of Ghulam Mohammad v. Mst. Sahiban (P L D 1967 Lah. 624). He was bound to follow this ruling in preference to those of other High Courts.
This, however, is not the only ground upon which the review was dismissed. As we have already indicated this was only one of the three grounds for the dismissal of the review. The contention that even if there were other ground, upon which the review was dismissed, leave should be granted to correct this error as it was not possible to say as to which particular ground weighed with the Additional District Judge, does not impress us. It is clear to us that there were no grounds upon which the order could have been reviewed and therefore, whether the learned Additional District Judge relied on this particular ground or not, the review was, in our opinion, bound to fail. We do not see any reason, therefore, for allowing this matter to be re agitated, particularly, since the High Court had, after inducing the Bar Association to represent the petitioner's cause and hearing the learned Advocate, deputed by the Bar Association for the petitioner as amlcus curiae, examined the whole case both on law and facts and came to the conclusion that neither law nor equity was in favour of the petitioner.
This petition is, accordingly, dismissed.
Leave refused.
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