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Civil Petition for Special Leave to Appeal No K‑162 of 1979, decided on 27th May, 1980,

(On appeal from the judgment and order of the High Court of Sind, Karachi, dated 23‑4‑1979 in IInd Appeal No. 337 of 1973).

---O XLI, r. 19 read with S. 151 and Constitution of Pakistan (1973), Art. 185(3‑Appeal of petitioner dismissed by High Court for non -prosecution‑Contention in application of petitioner, for setting aside ex paste order asserting that counsel who had earlier represented petitioner had sent an intimation that he was busy before some other Bench and also that he was informed that hearing bad been adjourned, discredited by Single Judge for very valid reasons‑Leave to appeal declined in circumstances.

Noor Ahmed Noori, Advocate‑on‑Record for Petitioner.

Nemo for Respondent

Date of hearing: 27th May, 1980.

Petitioner seeks special leave to appeal from the order of High Court of Sind dated 23rd of April, 1979, dismissing his second appeal for non‑prosecution due to his absence and also the absence of his counsel.

Mr. Noor Ahmed Noori, Advocate‑on‑Record submits that Mr. Abdul Majid Khan, learned counsel who represented the petitioner in the High Court, was busy before another Bench of the same High Court on 23rd of April, 1979, and had sent a slip in this behalf to the Reader of the Bench, and he was informed later on that the hearing had been adjourned to a date in office, and it was in the last week of May, 1979, when a notice was received by the petitioner in execution proceedings that he came to know that the appeal had been dismissed on 23rd of April, 1979.

This plea was noticed by the High Court in petitioner's application under Order XLI, rule 19 read with section 151, C. P. C. for the re‑admission of the appeal and it was rejected by these order dated 19th of January, 1980, for the following reasons:

"-----The ground for setting aside the ex parte of dismissal is that the learned counsel for the appellant was busy before another Bench of this Court. However, no such intimation was given to this Court and the affidavit does not even state the Bench before which the learned counsel was busy and if so in which matter. It is next alleged that the counsel had been informed by the son of the appellant that bearing of the appeal had been adjourned to a date in office which is hardly believable for the appeal in fact had been dismissed.

In the circumstances not only this application is barred by time but even otherwise without any merit and it is, therefore, dismissed."

Learned Single Judge discredited, for very valid reasons, the, assertion that the learned counsel who had earlier represented the petitioner had sent a intimation that he was busy before some other Bench and also that he was informed that the hearing has been adjourned.

We, for the same reasons that have prevailed with the learned Sin Judge in the High Court, find no merit in this petition. Leave is, therefore, refused and the petition is dismissed in limine.

Petition dismissed.

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