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P L D 1981 Supreme Court 513
Present : Muhammad Haleem, Actg. C. J. and Muhammad
Afzal Zullah, J
JAN MUHAMMAD‑Appellant
versus
MUHAMMAD ASGHAR‑Respondent
Civil Appeal No. 170 of 1.975, decided on 4th April, 1981.
(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 28‑11‑1975, passed in Civil Misc. No. 3988/C/1973 in C. R. No. 346 of 1973).
(a) Civil Procedure Code (V of 1908)‑
‑‑‑ S. 115 read with S. 151‑‑Restoration of revision application Sufficient cause‑Sufficiency of cause so as to justify restoration‑To be determined in peculiar circumstances of each case‑A fact considered in context of one set of circumstances and background might prove sufficient cause but same fact considered in different set of circumstances might not constitute sufficient cause‑Court however to exercise discre tion on due appreciation of facts and circumstances of case but such discretion to be exercised in accordance with accepted judicial principles.‑[Revision (civil)].
(b) Civil Procedure Code (V of 1908)‑,
‑‑ S. 115 read with S. 151‑Revision‑Dismissal‑Restoration Sufficient cause‑High Court dismissing revision inter alia on ground of petitioner's attorney having failed to appear in court‑room in response to case being called thrice‑.Affidavit relied upon by High Court with regard to presence of such attorney outside court‑room not containing any assertion to such effect‑Case not shown to be not a case of misreading of a highly important material before High Court‑Not possible in circumstances to assume that if High Court would not have been influenced by such allegedly adverse conduct exhibiting neglect, bordering on contumaciousness, it would have refused restoration of revision petition‑Question of sufficiency of cause of action, in circumstances, held, needed to be examined by excluding influence of aforementioned circumstance and just and proper to remand case for fresh decision.‑[Revision (civil)‑Remand of case].
Sh. Abdur Rashid, Advocate and Sh. Masud Akhtar, Advocate‑on‑Record for .Appellant.
Mian Fazle‑Mahmood, Senior Advocate for Respondent.
Date of hearing : 4th April 1981.
MUHAMMAD AFZAL ZULLAH, J.‑‑This appeal through special leave calls in question order, dated 28‑11‑1975, whereby a learned Single Judge of the Lahore High Court dismissed an application for restoration of appellant's Civil Revision, which had earlier been dismissed for non‑prosecution.
The respondent bad instituted a pre‑emption suit against the appellant. It was decreed ex parte. The appellant sought setting aside of the ex parte decree, as allegedly the summons had not been served on him. His appeal in the District Court having failed, he then filed a revision petition in the High Court which was dismissed for non‑prosecution on 12‑11‑1973 which bad earlier been fixed as an actual date for hearing. The appellant sought restoration of the revision petition on the grounds : that his counsel remained busy in the Supreme Court throughout the day on 12‑11‑1973 ; and that the counsel had remained under an impression that the revision petition had been adjourned to be relisted.
The statement made before the High Court that the learned counsel remained busy in the Supreme Court was in no way doubted. The learned Judge, however, observed that the Supreme Court's sitting started at 9‑30 a.m. while the work in the High Court commenced at 8‑00 a.m. There was an interval of 1f hours. The counsel could have attended to the Civil Revision in the High Court during this interval by informing the learned Judge or his Reader that he would remain busy in the Supreme Court. It was also observed that neither the appellant nor his learned counsel made inquiries about the revision after the counsel was free from the Supreme Court on the same day, i.e. 12‑1 t‑1973. And lastly, the learned Judge noted that an affidavit had been filed from the respondent's side "to the effect that the petitioner's attorney, namely, Muhammad Latif, was present outside the Court on 12‑11‑1973". If this assertion was true, the learned Judge thought, there was "no explanation why Muhammad Latif did not appear before me on any of the three occasions when the civil revision was called before its dismissal". "For these reasons", it was held, their was no sufficient cause for restoration of the revision.
While dealing with the case‑law cited from both the sides with regard to the conduct of counsel/party via‑a‑via, the question of restoration, learned Judge remarked as follows :‑
"It is unnecessary to mention these authorities as no hard and fast rule can be laid down as to what will and what will not be a sufficient cause for this is essentially a question of fact and has to be determined in the peculiar circumstances of every case."
Learned counsel for the appellant, who himself was to appear in the High Court to argue the revision petition as also was to appear in two of his cases in the Supreme Court on 12‑11‑1973, has explained that the revision petition was listed as one of the last cases before the learned Single Judge. Prior thereto there were more than half a dozen notice cases for regular hearing of writ petitions. There were some record cases including two civil appeals and yet another part heard notice case. Therefore, he further explained, he had made the usual assessment and estimate of time that the revision petition, which was itself a notice case, was not likely to reach during the early hours of the day and that is why he remained present in the Supreme Court where two of his cases were listed for hearing, one at No. 2 and the other at No. 5. In view of the order we propose to pass in this matter, it would not be fair to either party make any comment by way of assessment regarding the explanation of the learned counsel, except that it would undoub tedly be worth consideration.
It is not disputed that the view of the law with regard to sufficiency o cause so as to justify restoration taken by the learned Single Judge, namely, that it has to be determined in the peculiar circumstances of every case, is unexceptionable. A fact considered in the context of one set of circum stances and background, might prove to be a sufficient cause but the same fact considered in different set of circumstances might not constitute a sufficient cause. Further it is not a disputed question that the Court concerned (and in this case the High Court) has to exercise discretion on due appreciation of the facts and circumstances of each case. The exercise of discretion undoubtedly has to be in accordance with accepted judicial principles.
In this case, we have noticed that two main features influenced the learned Judge when exercising discretion against the appellant with regard to the restoration of his revision petition : (1) that there was no explanation for the learned counsel not attending the High Court during 1* hours' interval between the commencement of the work in the two Courts where he was to appear on the same day ; and
(2) there was no explanation why appellant's Attorney Muhammad Latif should not have appeared in Court Room, in response to the case having been called thrice. It appears that the learned Judge was of the view that if Muhammad Latif had been vigilent, the revision might not have been dismissed for default.
On proper scrutiny of the record with the help of the learned counsel, it has been discovered that the affidavit relied upon by the High Court wit regard to the presence of Muhammad Latif outside the Court‑Room did not contain any assertion to that effect. The learned counsel appearing for the respondent was unable to show that it was not a case of misreading o a highly important material before the learned Judge. It is not possible to assume, in the circumstances of this case, that if the learned Judge would note have been influenced by this allegedly adverse conduct exhibiting neglect, bordering on contumaciousness, he would have, in any case, refused restoration of the revision petition. It is, therefore, clear that question of sufficiency o cause needed to be examined by excluding the influence of the aforementioned circumstance. In the circumstances of the case, we deem it just and proper that instead of deciding this question, which fell within the discretionary jurisdiction of the High Court, the matter should be remanded for fresh decision. We accordingly allow this appeal. The matter shall be remitted to the High Court where the application for restoration of the revision petition shall be deemed to be pending and shall be decided afresh in accordance with law. There shall be no order as to costs.
Appeal allowed. Case remanded.
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