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Civil Petition No.556 of 1979, decided on 27th February, 1985.
(Against the judgment and order of the Lahore High Court, Lahore, dated 16‑6‑1979 in Civil Miscellaneous No.3652 of 1979 in R.S.A. No. 34 of 1979).
‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), S. 100‑‑Regular Second Appeal dismissed in default and for non‑prosecution‑‑Applications filed for restoration of appeal and for condonation of delay‑‑Such applications were dismissed by High Court rejecting ground taken in application that counsel representing petitioners had omitted or failed to notice listing of appeal‑‑Leave refused by Supreme Court on ground that High Court had examined all aspects of case and had taken view of matter which was unexceptionable‑‑Exercise of discretion by High Court was not open to further scrutiny.
Iqbal Ahmad v. Mst. Sharif‑un‑Nisa and others P L D 1967 Lah. 1098 and Sawab Khan v. Dr. Abdul Hemid Khan P L D 1968 Lah. 1224 ref.
Malik Muhammad Qayyum, Advocate Supreme Court instructed by Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioners.
Nemo for Respondent.
Date of hearing:27th February, 1985.
‑The petitioners seek leave to appeal against the judgment of the Lahore High Court, dated 16‑6‑1979 whereby an application filed by them for restoration of their appeal which was dismissed in default and for non prosecution was itself dismissed.
The petitioners had filed a regular second appeal in the High Court which was properly listed for hearing on 8‑5‑1979. On that date the appeal was called out thrice and was kept in waiting but was ultimately dismissed on account of non‑appearance of the petitioners and their counsel at 1‑30 p.m. By two applications filed by the petitioners on 14‑6‑1979 the petitioners sought restoration of the appeal and the condonation of the delay in making application for the restoration. The only ground urged was that the learned counsel representing the petitioners in the High Court had omitted or failed to notice the listing of the appeal.
The learned Judge in the High Court relying on Iqbal Ahmad v. Mst. Sharif‑un‑Nisa and others P L D 1967 Lah. 1098 and Sawab Khan v. Dr. Abdul Hamid Khan P L D 1968 Lah. 1224 dismissed both the applications considering the ground given as insufficient.
The learned counsel for the petitioners has nothing further to add to what has been noted by the learned Judge in the High Court. His contention is, however, that it was a human error on the part of the learned counsel to have missed the case from the list and some indulgence should have been shown and the petitioner should not have been made to suffer for it.
The learned Judge in the High Court has examined all aspects of the case and has taken a view of the matter which is unexceptionable. The exercise of discretion by the High court is not open to further scrutiny and leave to appeal is, therefore, refused.
A. A. Leave refused.
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