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Civil Petition for Special Leave to Appeal No. 63‑P of 1983, decided on 21st November, 1983.

(On appeal from the judgment and order of the Peshawar High Court, Peshawar, dated 30th January 1983 passed in R. S. A. No. 9 of 1983)

‑‑ Art. 185 (3)‑Civil Procedure Code (V of 1908), Ss. 96 & 100 Second appeal dismissed by High Court for non‑prosecution‑Petitioner represented by counsel stationed at seat of High Court‑Question of service of Notice in such case does not arise‑Leave to appeal against dismissal of second appeal for non‑prosecution refused.

Sardar Khan, Advocate Supreme Court instructed by M. Qasim Imam, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 21st November, 1983.

Being aggrieved by a decree passed against her in a suit for possession on 19‑9‑1971 by the Civil Judge 1st Class, Peshawar, the petitioner filed an appeal before the District Judge, Peshawar, which was heard and dismissed by the Additional District Judge, Peshawar vide judg ment dated 2‑2‑1976.

2. The petitioner then filed a regular Second Appeal before the Peshawar High Court, Peshawar. On 18‑12‑1982 when the appeal was called on for hearing, however, neither the petitioner nor her counsel was present, conse quently the appeal was dismissed for non‑prosecution. According to the petitioner when her husband went to the office of the High Court for seeking information with regard to the fixing of the hearing of the appeal which was being awaited, he learnt for the first time that the appeal had been dismissed for non‑prosecution. On 16‑1‑1983, therefore, an application was submitted on behalf of the petitioner for readmission of the appeal and its fresh decision, mainly on the ground that no notice of the date of hearing was served by her. The learned Chief Justice upon hearing the learned counsel for the petitioner, however, dismissed this application holding that no sufficient ground for readmission of the appeal was made out vide order dated 30‑1‑1983.

The present petition is directed against the last mentioned order refusing to restore the appeal for fresh decision. The main ground urged in support of the petition by Mr. Sardar Khan, Advocate is that the learned Acting Chief Justice has been wrongly influenced by the consideration that the appeal was adjourned at the instance of the petitioner on many previous occasions as the appellant's counsel avoided to appear before the Court on one pretext or the other. Learned counsel submitted that most of the dates referred to in the order in this connection related to the period when the appeal was not ripe for hearing but was given up before the Additional Registrar. He, however, conceded that some of the adjournments were obtained there after by the petitioner's counsel.

4. After bearing the learned counsel we find that the petitioner was represented by a counsel stationed at Peshawar and, therefore, there was no question of the notice for the hearing not having been served on the‑petitioner when the appeal was called up and dismissed for non‑prosecution. Indeed this being the only ground on which the restoration of the appeal was being sought, we see no reason to disagree with the view taken by the learned Acting Chief' Justice that no justifiable ground in support of the prayer for restoration was made out. Learned counsel further contended that the case papers were taken away by the counsel appearing for the petitioner as she wanted to engage another counsel. There is no force in this submission as admittedly the counsel representing the petitioner did not withdraw from the case with the permission of the Court as required by the rules.

5. For the foregoing reasons this petition is without merit and is accordingly dismissed.

S. Q. Petition dismissed.

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