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Civil Miscellaneous No.338/C of 1985 in First Appeal from Original : rder No.300 of 1980, decided on 22nd September, 1985.

Civil Procedure Code (V of 1808)--

---S. 151 and O.XLI, rr. 17 & 19--Appeal--Dismissal in default---Restora tion--Petition for--Explanation for absence furnished by counsel for petitioner was far from satisfactory--Counsel for petitioner who posed to be busy before another Court when appeal was called, failed to take step to inform Court in time about his being busy in other Court--Petitioner and his counsel did not take due care of appeal in question and added to agony of respondent due to their conduct--Petition for restora tion of appeal was dismissed,- though huge amount was involved in appeal, due to negligence of petitioner and his counsel.

Pakistan Day Memorial Committee and another v. Mian Abdul Khaliq & Company, Civil Engineers and Contractors 1984 C L C Lah. 3332 rel.

Muhammad Naeem for Petitioner.

Muhammad Tufail Basra for Respondent.

Date of hearing: 22nd September, 1985.

This is a petition for restoration of an appeal (First Appeal from Order No.300 of 1980) which was dismissed on 21st January, 1985 for want of prosecution. On the said date, none had appeared on behalf of the petitioner (appellant) although learned counsel for the respondent and a representative of the respondent were in attendance.

2. Earlier, the appeal was fixed for 10th December, 1984 when too none was present on behalf of the appellant. It was, therefore, adjourned to 21st January, 1985 with the following order:-

"Since it is an old and lengthy case, it shall be relisted for 21st January, 1985 and 22nd January, 1985. No other Pacca case shall be fixed for the said dates. This case will be taken up at 9.00 a.m. on 21st January, 1985 and if the hearing is not concluded on the said date, it shall be heard again on 22nd January, 1985 at 9.00 a.m. On both these days, the office shall fix only such other work as can be disposed of within an hour."

3. In the petition for restoration of the appeal following explanations was furnished for the absence of learned counsel for the petitioner (appellant) on 21st January, 1985, when the appeal was dismissed in default: -

"That the counsel for the appellant appeared in the Court, when the Court started hearing in the morning. As there was still some time for the case to come up. The counsel for the appellant informed the Reader of the Court that that his engagement in a katcha matter in another Court. The counsel went to attend that matter and when came back the case had been dismissed for want of prosecution a little while ago."

4. No explanation was offered for the absence of the petitioner and it was simply stated that the "absence of the appellant was neither wilful nor negligent."

5. My order dismissing the appeal make the following reading:-

"This case was first called on at 9.00 a.m. when Mr.Qamar Riaz Hussain, Advocate, and Syed Shafiq Ahmed were present on behalf of the respondent but none had turned up to represent the appellant. It has again been culled on now at 9.37 a.m. when position is the same. Dismissed for want of prosecution."

6. It is not the case of the petitioner that the petitioner or its learned counsel were not aware of my order, dated the 10th December, 1984 by which the case was directed to be heard on 21st January, 1985 at 9.00 a.m. Since a definite time, i.e., 9.00 a.m. had been fixed by me for the hearing of the case on 21st January, 1985 learned counsel for the petitioner should have been present in Court at that time. He, however, did not turn up at the appointed time and also failed to enter appearance for 37 minutes thereafter. This shows that he did not take due care of the case despite the anxiety expressed by me on 10th December, 1984 for early disposal of the case which was old and lengthy.

7. It has been stated by the learned counsel for the petitioner that he had informed my Reader that he was going to be busy in another case. I am not aware of his talk with my Reader. I, however, remember that my Reader did not bring it to my notice that learned counsel for the petitioner had gone to another Court. Learned counsel has not mentioned the other Court to which he had gone in Katcha matter. It is not known whether it was a Bench of this Court or it was some subordinate Court. Particulars of the case in which he had appeared in Katcha Peshi have not been furnished. The time when learned counsel for the petitioner was free from the said Court has also not been indicated It cannot, therefore, be said that the learned counsel was actually busy before another Court when the appeal in question was dismissed for want of prosecution. There is an Office Order, dated the 20th November. 1965, issued by this Court which has been reproduced at page 87 of High Court Practice and Procedure by Faiz Muhammad Sadiq. It is to the following effect:-

"No adjournment is to be granted on account of engagement in another Court unless counsel is occupied with a case being actually heard in that Court. In the latter case counsel has to send engagement slip under his signature 'to the second Court giving the particulars of the case with which he is busy and the time he will take before concluding it."

Learned counsel for the petitioner did not send any chit in compliance with the above order.

8. I waited for the petitioner and his learned counsel for about 37 minutes and none had cared to enter appearance during that time. Even clerk of the learned counsel did not bother to appear before me to state that the learned counsel was busy elsewhere.

9. As stated earlier, there is absolutely no explanation for the absence of the petitioner, namely, Province of the Punjab through Secretary, Government of the Punjab, Communication and Works Department, Lahore The said Department has hundreds, if thousands, of employees in Lahore but none of them had entered appearance before me on the day when the appeal was dismissed in default. Thus, the absence of the petitioner ties unexplained.

10. It has been stated in the petition, by learned counsel that the petitioner, that subject-matter of this case is a huge amount of money and if the case is not restored the petitioner is likely to suffer an irreparable loss. If the petitioner was conscious of the fact that huge amount was involved in the appeal, the petitioner and his counsel should have taken extra care in the matter of its prosecution. Instead of so doing, however, they almost ignored it. Quantum of the sum involved in this case cannot, therefore, be made use of by the petitioner for avoiding consequences of its own negligence and that of its counsel.

11. I regret to point out that before the dismissal of the appeal this time, i.e., on 21st January, 1985, it was dismissed in default on three previous occasions i.e. on 6th December, 1981, 10th November, 1982 and 8th April, 1984 but was restored. All this is indicative of the fact that the petitioner was not keen in prosecuting the appeal. The petitioner and its counsel, then prolonged the agony of the respondent who had been awarded a sum of Rs.1,51,469 about five years ago but not a penny has been paid to him as yet.

12. Facts of this case are identical to a case reported as Pakistan Day Memorial Committee and another v. Mian Abdul Khaliq & Company, Civil Engineers and Contractors 1984 C L C Lah. 3332, in which I had examined the relevant law before dismissing petition for restoration of appeal. Learned counsel for the petitioner did not cite any law or authority for persuading me to change the view expressed in the cited case.

13. In order to get the appeal restored the petitioner and its learned counsel should have given plausible explanations for their absence on the date and at the time when the appeal was dismissed in default. Explanation furnished by the learned counsel for the petitioner is far from satisfactory. Even if he had any cause for his absence, none has been shown for the absence of the petitioner. In the past also the petitioner and his counsel had been negligent in prosecuting the appeal. I am, therefore, not inclined to restore it. The petition is dismissed.

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