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Civil Petition for Special Leave to Appeal No. 652 of 1979, decided on 7th February, 1983.
(Against the order, dated 3‑7‑1979 of the Lahore High Court in Writ Petition No. 484/R/1971).
Constitution of Pakistan (1973)‑‑
‑‑Arts. 185(3) & 199‑High Court‑dismissing writ petition on ground of default in appearance‑Order of High Court challenged as being factually incorrect‑Controverted questions of fact‑Held, cannot be entertained or adjudicated upon by Supreme Court.
Haji Ghias Muhammad, Senior Advocate Supreme ‑Court and Sh. Abdul Mannan Tanvir Ahmad, Advocate‑on‑Record for Petitioner.
Shaukat Ali Saqib, Advocate Supreme Court and Ch. Muhammad Aslam, Advocate‑on‑Record for Respondents.
Date of hearing : 7th February, 1983.
‑The petitioner seeks leave to appeal against an order of the Lahore High Court, dated 3rd of July, 1979, whereby on non -appearance of the petitioner and his counsel the Constitutional petition filed by him was dismissed and this application for restoration of the same was rejected on the next day.
The petitioner had filed a constitutional petition (Writ Petition 484/R/71). It came up for hearing before the learned Judge on 3rd July, 1979, when it was dismissed with the following order :‑
"Respondent present in person.
This case was fixed thrice for hearing on different dates. Respondent appeared in person on each date of hearing but none appeared on behalf of the petitioner although the case and the name of the counsel for the petitioner appeared in the Cause List. Called several times. None appeared for petitioner. Petition is dismissed."
His application for restoration was dismissed with the following order:
"No ground for restoration. Petition is dismissed."
The learned counsel for the petitioner has taken up the following ground in the petition in this Court
"That the order of the learned Judge in chamber is factually incorrect in holding that the case was fixed thrice for hearing on different dates and that respondent appeared in person on each date of hearing but none appeared on behalf of the petitioner. The order sheet annexed with this petition will clearly support the contention of the petitioner. It is however, submitted that the case was listed more than once but the same was not taken up because the learned Judge was on leave."
If we go by the recital of the conduct of the petitioner and his 'counsel as contained in the impugned order, there appears to be no case, for inter ference with the order. As regards the ground reproduced above challenging the correctness of the recital, we consider that we are not in a position to entertain or adjudicate on this controverted question. It is a matter which should be resolved by the learned Judge himself for which if the petitioner is so advised may seek review of the order. Unless the factual controversy is resolved the legal basis for restoration would not be made out. Leave to appeal is, therefore, refused with the above observations.
S. Q. Leave refused.
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