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Civil Petition for Leave to Appeal No. 551‑K of 1984, decided on 2nd. December, 1984.

--‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), O.XLI, r.19‑ Re‑admission of appeal dismissed for non‑prosecution‑‑Counsel's non appearance due to illness and non‑receiving of notice of hearing‑‑Plea rejected by High Court on ground that there was no justification for non‑attendance of counsel or client‑‑No steps were taken for adjournment of case if counsel was ill‑‑Non‑prosecution of appeal on basis of counsel being not member of High Court Bar Association was considered unjustified and rejected by High Court‑‑Supreme Court agreeing with findings of High Court, refused leave to appeal.

M.M.K.A. Zai, Advocate Supreme Court with Faizanul Haq, Advocate‑on‑Record (absent) for Petitioners.

Nemo for Respondent.

Date of hearing: 2nd December, 1984.

This is a petition for leave to appeal from the order of Sind High Court, dated 30‑9‑1984 dismissing petitioner's' application under Order XLI, rule 19 of Code of Civil Procedure for readmission of the appeal filed by him which was dismissed by the High Court on 7‑5‑1981. On that day, neither the petitioner nor his counsel was present when the appeal was called out for hearing, and it was, therefore, dismissed for non‑prosecution.

The plea taken in support of the application for readmission of the appeal was that the learned counsel Mr. Hashmat Ali Habib, who was appearing for the petitioner before the High Court was unable to attend due to illness, and he had no notice of the hearing fixed for 7‑5‑1981 as he was not a member of the High Court Bar Association and as such he does not receive the cause list of the cases before the High Court. The High Court rejected these pleas for the reasons which may be reproduced hereunder:

"These grounds are not enough to justify non‑attendance of the counsel and/or his client. It is the duty of the counsel to see that proper steps are taken to seek adjournment if he falls ill. An application could be sent by the counsel for adjournment on the ground of ill‑health and the party can also be sent to attend on the date of hearing and apply for adjournment if his counsel was unable to attend. If the counsel appears in a case in the High Court then it is not permissible for him to use the ground that he could not attend because he did not get the cause list because he is not a member of the High Court Bar Association. It is for the counsel to take proper steps to see that the case is properly attended to on every date of hearing and if he is unable to attend on some date due to any unavoidable reasons then proper request can be made to the Court for adjournment. The counsel cannot be allowed to succeed on the ground that non‑prosecution of the matter was justified because the counsel was not a member of the High Court Bar Association and did not get the cause list. In any case in this case on 16‑4‑1984 Mr. Hashmat Ali Habib, Advocate appeared before the Court and sought adjournment on the ground that he had sore throat and at his request the case was adjourned. Since no specific date was given, it is understood that the next date was to be given in office. Mr. Hashmat Ali Habib has admitted before me that in such case the next date comes normally after three weeks. In the instant case, the case again came up for hearing on 7‑5‑1984 which is exactly after three weeks. It was in the knowledge of the learned counsel that the case was likely to be fixed in the second week of May. He should have taken all precautionary measures to ascertain the actual date of hearing from whatever means he could. He could have sent his client or his clerk to the High Court to enquire about the date of hearing if he had no arrangement to receive the cause list in the office."

We wholeheartedly agree with the reasons that prevailed with the learned Judge in the High Court to dismiss petitioner's application, and there is, therefore, no force in this petition. It is accordingly dismissed.

A.A. Leave refused.

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