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Civil Petition No. 1443

of 1980, decided on 26th January 1981.

(On appeal from the judgment dated 24th September 1980 of the Lahore High Court to I.‑C. A. No. 1197 of 1966).

Civil Procedure Code (V of 1908)

---O. XLI, r. 19‑Appeal. Read mission of‑Contention that names of counsel engaged later having not appeared in cause list, they naturally could not appear and appeal in such circumstances should not have been dismissed and ought to have been readmitted‑Name of one of counsel appointed by petitioner appearing in cause list, particulars of case rightly mentioned in cause list, counsel, held, should have been sufficiently vigilant to note case and connect it with case in which appointed to succeed another Advocate whose appointment not deter mined with leave of Court but petitioner only wishing him not to pursue their case and appointing two fresh counsel‑Omission of names of fresh counsel in cause list in circumstances, held, not such a defect as would relieve them of their duty to notice case in cause list and appear before Court on date fixed for hearing.

Sawab Khan v. Abdul Hamid Khan P L D 1968 Lah. 1224 ; Iqbal Ahmad v. Mst. Sharifun Nisa P L D 1967 Lah. 1098 and Lt.‑Col. Mirza Munawar Beg etc. v. Mst. Naseer Bibi C. P. No. 159 of 1975 (unreported)ref.

Kh. Muhammad Tufail, Advocate Supreme Court with Rana Maqbool Ahmad, Advocate‑on‑Record for Petitioners.

Jariullah Khan, Advocate Supreme Court and Iqbal Ahmad Qureshi, Advocate‑on‑Record for Respondents.

Date of hearing : 26th January 1981.

-This petition for leave to appeal is directed against the order dated 24‑9‑1980 passed by a Division Bench of the Lahore High Court dismissing an application (C. M. No. 5583/80 in I. C. A. 1197/66) seeking re‑admission of the appeal (I.‑C. A. No. 1197/66) which was dismissed in default as well as on merits on 2‑6‑1980.

Re‑admission of the appeal was sought on the ground that in cause list only the name of Sh. Nasir Ahmad, Advocate had appeared, although the said Sh. Nasir Ahmad had ceased to be the counsel for the petitioners and the petitioners had engaged two new counsel, namely, Kh. Mohammad Tufail and Sh. Sikander Iqbal. The submission was that as the name of the counsel, who were engaged later on, did not appear in the cause list, they naturally could not appear and the appeal, therefore, in these circumstances should not have been dismissed and was liable to be readmitted.

The learned Judges in the High Court were of the opinion that as new counsel had been engaged it was their duty to have noted the case and appeared

on the date of hearing because the name and number of the case did appear in

the cause list. Reliance was placed on two judgments of the Lahore High Court, namely Sawab Khan v. Abdul Hamid Khan (P L D 1968 Lah. 1224) wherein it was held the negligence of the appellant's counsel not to notice the case in the list will not be sufficient cause for readmission of appeal. Similarly in lqbal Ahmad v. Mst. Sharifun Nisa (P L D 1967 Lah. 1098) the Court refused to restore an appeal where the counsel engaged in it and his clerk did not note the case in the supplementary list.

Kh. Mohammad Tufail, learned counsel for the petitioners, in support of this petition for leave to appeal, has relied on a recent judgment of this Court in Lt.‑Col. Mirza Manawar Beg etc. v. Mst. Naseer Bibi C. P. No. 159 of 1975, decided on 14‑7‑1980. Herein the name of the counsel engaged for the peti tioners was Abdul Majeed Khan Lashari whereas in the cause list of the date on which the case was heard and decided (25‑11‑1971), the name of the counsel was mentioned as Abdul Majeed Khan. However, the full name was mention ed in the cause list in the earlier dates but not so in the list for the 25th November, 1971 on which date the writ petition was dismissed for non‑prose cution. It was argued on behalf of the petitioners that it was the common practice of the members of the bar to see the cause list with reference to their own names appearing therein, as it is not possible for anyone to remember the number of the case or the names of the parties with the result that if the full name is not shown in the cause list then counsel are likely to miss the same on the assumption that the case does not relate to them. It was further submitted that there is an Advocate of the name of Mr. Abdul Majeed Khan while the counsel for the petitioner was Mr. Abdul Majeed Khan Lashari. The contention was that the learned Judge in the High Court was in error in refusing to restore the writ petition, although it was clear that the counsel for the petitioners could not connect the case with his name for the date on which the writ petition was actually dismissed. In these circumstances, this Court observed that it was satisfied that the omission of the full name of Mr. Abdul Majeed Khan Lashari from the cause list of the 25th of November, 1971, did, indeed constitute a sufficient cause for his absence on the said date and the learned Judge in the High Court was in error in refusing to restore the writ petition for hearing on merits.

At first sight we were inclined to consider that this judgment was fully applicable in the circumstances of this case and we were of the view that the submission of the learned counsel for the petitioners that the order of the High Court refusing to readmit the appeal was not justified was correct. On d deeper reflection, however, we find that the ratio of this judgment would not be attracted in the facts of the present case in the precedent case, the name of the counsel engaged in the case was wrongly printed in the cause list and instead the name of another counsel was shown as counsel, thus that was a case where name of the counsel appearing in the cause list was different from that of the actual counsel. In such a case there would be sufficient cause for non‑appearance of the actual counsel. However, in the present case, it is not disputed that the name of the counsel, who originally filed the appeal, namely, Sh. Naseer Ahmad was correctly mentioned in the cause list. Thus, the present is a case where the name of one of the counsel appointed by the petitioners did appear in the cause list. The reasons given by Kh. Muhammad Tufail for his failure and that of his learned colleague for not appearing in the Court, namely, that they had subsequently been engaged and had taken over the brief from Sh. Naseer Ahmad and that they alone had actually been appearing in the subsequent hearings does not detract from the fact that Sh. Naseer Ahmad was also counsel in the case at one stage and his name did appear in the cause list. It is not denied that the particulars of the case were rightly mentioned in the cause list and the only defect pointed out is that their names should also have appeared. We feel that they should have been sufficiently vigilant to note the case and connect it with the case in which they had been appointed to succeed Sh. Naseer Ahmad, Advocate. It is not their case that appointment of Sh. Naseer Ahmad had been determined with the leave of the Court. Only the petitioners did not wish him to pursue‑their case and had, therefore, engaged two fresh counsel.

In these circumstances, we do not think that the learned Judges in the High Court have exercised their discretion, in not readmitting the appeal, illegally, arbitrarily or capriciously. This is, therefore, not a fit case for the grant of leave to appeal.

This petition accordingly fails and is dismissed hereby.

Petition dismissed.

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