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Civil Petition for Special Leave to Appeal No. 361 of 1981, decided on 14th April, '‑981.

(On appeal from the judgment of the Lahore High Court on 16‑3‑1981 in W. P. 11197/80).

Constitution of Pakistan (1973)‑

---Art. 199 read with Civil Procedure Code (V of 1908), O. XVII; r. 3‑Writ petition‑Dismissal for default‑Restoration‑Proceedings under Art. 199 of Constitution involving determination of substantial questions of law relating to conduct of public authorities not to be decided on pleadings necessarily‑Desirable and at times necessary in circumstances to hear arguments at length‑Parties seeking intervention of Court failing to address arguments Court, held, justified in refusing to undertake exercise unassisted and in absence of counsel of petitioners dismissal of petition justified.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi P L D 1970 S C 1 and Seth Shivrattan G. Mohatta and another v. Messrs Muhammad Steamship Co. Ltd. P L D 1965 S C 669 ref.

Syed Sajjad Raza Jafri, Advocate Supreme Court with S. Abid Nawaz Petitioners.

Ali Ahmad A wan, Advocate Supreme Court with M. A. Qureshi, Advocate on‑Record for Respondents

Date of hearing : 14th April, 1981.

.‑The petitioners seek leave' to appeal against as order of the Lahore High Court dated 16‑3‑1981 whereby the learned Judge declined to restore a writ petition earlier dismissed on 28‑2‑1981 for non‑prosecution.

2. The petitioners had filed a constitutional petition in the High Court. After getting parawise comments it was admitted to regular hearing. On 28‑2‑1981 when the matter came up for hearing the following order was recorded for dismissing it for non‑prosecution :

28‑2‑1981. Mr. Ali Ahmad Awan, Advocate for respondents.

"Mr. Abul Asim Jafferi, Advocate appears to make a request for adjournment. As an adjournment 'had been granted to the learned counsel on the last date on clear understanding in writing that no further adjournment shall be allowed I am not in a position to allow this request. The learned counsel should not have absented himself like that. This petition is consequently dismissed for non‑prosecution."

3. Soon thereafter an application was made for getting the constitutional petition restored. That matter was disposed of with the following orders .

"It is contended by the learned counsel that as he was busy elsewhere out of Lahore and as he did not know that the case had been adjourned on previous two dates with a warning that no further adjournment shall be allowed he is not at fault.

I am sorry I cannot accept that contention. This case had been adjourned with a warning on 16th February, 1981 despite objection by learned counsel for the respondent who had stated that even previously the case was adjourned. I allowed another opportunity despite the fact that two counsel for the respondents were present on 22nd February, 1981, again with a warning that no further adjournment shall be allowed. The case was ultimately dismissed on 28th February, 1981, when a further request was made. As the learned counsel had known the fixation of the case on all these dates and as he was obliged to make some arrangement particularly when he ought to have known that same was fixed with a warning, I do not find any justification to restore it. This application is consequently dismissed."

4. The learned counsel for the petitioners contends that Civil Procedure Code applied to the proceedings as held in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi (PLD1970SC1). In view of it the constitutional petition could not have been dismissed for default under Order XVII, rule 3, C. P. C. and instead a decision on merits should have been handed down. The other argument of the learned counsel for the petitioners is that Mr. Asim Jaffery who appeared in the case was also a counsel engaged in the proceed ings, his power of attorney appeared and he should have in any case been beard without taking it to be a case of non‑prosecution. Finally, the learned counsel submitted that it was a case where there was sufficient grounds for getting the matter restored. For establishing this ground he relied on the decision of Seth Shivrattan G. Mohatta and another v. Messrs Muhammadi Steamship Co. Ltd. (P L D 1965 S C 669).

5. It is correct that proceedings of a civil nature as in constitutional jurisdiction under Article 199 are governed by the Civil Procedure Code. These are applicable only to the extent and in the manner necessary for regulating the particular proceedings. For example, as the constitutional petitions do not ordinarily involve submission of pleadings, framing of issues, recording of evidence no party to such proceedings can insist on the observance of these steps simply because the proceedings happened to be of civil nature and are governed by the Civil Procedure Code in the matter of powers and procedures. For those reasons Order XVII, rule 3, C. P. C. would not be strictly applicable. It is only the hearing of the argument, which takes place after proper notice has been served on the other party. It cannot be laid down as a law that simply because hearing of the argument on questions of law is involved even if the parties do not appear a judgment should be delivered in the absence and without hearing the parties. As proceeding under Article 199 involve substantial questions of law relating to conduct of public authorities and are not to be decided on the pleadings necessarily, it is desirable and at times necessary to bear arguments at length and where the parties seeking the intervention of the Court fail to address arguments the Court is justified in refusing to undertake the exercise unassisted. In the absence of the counsel of the petitioner the dismissal in default was proper and justified.

6. In the present case it appears to be more justified than in any other case because as we find from the order itself the counsel had been fore warned in writing to be present and to address arguments. He had not appeared himself nor made any arrangements for the addressing of the arguments but had sought yet another adjournment. This was such a conduct which could be penalised by the Court and refusal to restore on being not

satisfied with the pre‑occupation of the learned counsel cannot be said to be a harsh order.

7. From the order of the Court it appears that Mr. Asim had appeared only to seek adjournment and not to argue the case. Mr. Asim had not filed any affidavit stating that he wanted to argue and was prevented from doing so. This is the point which was not urged before the learned Judge from whom restoration was sought and in any case it does not find mention in the order. We take it that it is an afterthought.

8. As regards the sufficiency of the reasons, the case cited by the learned counsel for the petitioners in support has obvious distinguishing features. We do not find yet any reason on record which may appear ex facie sufficient to justify his absence He should have asked to be relieved of his pre‑occupation elsewhere if be had been directed by the Court to be present in the proceedings in view of his earlier requests.

9. We find that the petition has no merit and leave to appeal is refused.

Petition dismissed.

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