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Civil Miscellaneous Appeal No.92 of 1979, decided on 3rd August, 1987.

---O.XLI, R.19--Restoration of appeal dismissed for default--Counsel for appellant remaining busy before another Court on date of hearing and intimating his client (appellant) regarding his engagement and his non-appearance on that date was sufficiently explained--Court, held, should-have taken a lenient view of non-appearance of appellant and allowed restoration of case on payment of reasonable costs--Appeal restored on payment of costs to respondent.

Ali Mohammad Memon for Appellants.

Nooruddin Sarki for Respondents.

Date of hearing: 3rd August, 1987.

This Miscellaneous Appeal is directed against the order of District Judge, Shikarpur, whereby the learned Judge refused to restore the appeal which was dismissed for non-prosecution on 22-4-1979 on account of absence of the appellant and his counsel. It is not disputed by the learned counsel for the respondents and it is also quite apparent from the record of the case that on the aforesaid date the learned counsel appearing for the appellant was busy in another case at Sukkur before the District Judge and he had sent intimation to his client to that effect but his client also did not appear when the case was called on for hearing before the learned Court below. In the affidavit filed by the applicant in support of the application under Order XLI, Rule 19, C.P.C. before the Court below it is stated that he had sent his nephew to appear in Court 22-4-1979 as he was directed to remain present on that date in the Police Station in connection with a proposed visit of the Superintendent of Police. The Court diary, however, does not show that the nephew of the appellant appeared before the Court below on the date of hearing and asked for adjournment. However, as it is not disputed that the learned counsel appearing for the appellant was busy before another Court in Sukkur on the above date and he had intimated his client, the appellant, regarding his engagement his non-appearance on that date was sufficiently explained. In these circumstances, the learned Court below should have taken a lenient view of the non-appearance of appellant and allowed restoration of the case on payment of A reasonable costs to the respondent's counsel. I accordingly accept the appeal, set aside the order passed by the learned District Judge Shikarpur and restore the appeal on condition of payment of Rs.1,000 as costs to the respondent. In case the costs is not paid before proceeding with the appeal before the Court below this appeal shall be deemed to have been dismissed and restoration refused.

M.Y.H./H-54/K Appeal accepted.

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