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Constitutional Petition No.S‑179 of 1983, decided on 23rd November, 1986.

‑‑‑O. III, R. 1 a O. XLI, R. 19‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑Application for restoration of rent appeal dismissed for default of appearance‑‑Counsel for petitioner/appellant filing his personal affidavit wherein he explained his absence and absence of appellant which was not found unsatisfactory by appellate Court‑‑Appellate Court, however, dismissed application on ground that appellant had not explained his absence‑‑Appellant, who could appear either in person or through his recognized agent, was represented by his counsel‑‑Appellant was, therefore, not required to file his own affidavit alongwith that of his counsel‑‑Petition allowed and case remanded to appellate Court below for disposal in accordance with law.

Zulfiqar Ali v. Lal Din and another 1974 S C M R 162 and Akhtar Hussain v. Settlement Commissioner, Lahore Division, Lahore and others P L D 1966 (W.P.) Lah. 567 ref.

S.M. Abbas for Petitioner.

Mehmood A.H. Baloch for Respondents.

Date of hearing: 23rd November, 1986.

This petition is directed against the order passed by the learned District Judge, Karachi, dated 21‑11‑1983.

The facts of the case, briefly, are, that the petitioner had filed rent appeal bearing No.49 of 1981 before the learned District Judge, Karachi which was fixed before him for hearing on 31‑1‑1981. On that date the petitioner and his counsel failed to appear before the learned Judge which resulted in dismissal of the appeal for default of appearance. The petitioner then filed application under Order 41 rule 19, C . P. C . , dated 31‑2‑1983 inter alia, praying for restoration of the appeal. His counsel Mr. Khalid Athar filed his own affidavit in support of the application and the reasons given by him in paras Nos. 2 and 3 of the affidavit, in his own words, are as under:‑------

"That this case was fixed on 31‑1‑1983 when I could not appear before this Hon'ble Court because of severe and sudden attack of high blood pressure and there was nobody else in my office to look after and/or move an adjournment application in this respect. '

3. That the appellant could not present himself before this Hon'ble Court because he had the belief that his Advocate would be as usual represent him before this Hon'ble Court also on this date."

The learned District Judge, however, was not impressed by the affidavit and he dismissed the aforesaid application vide his order, dated 21‑11‑1983 which has now been impugned in this petition. The reasons according to the learned District Judge for dismissal of the application are, that although the absence of the counsel had been explained in his personal affidavit, but the absence of the appellant had not been explained.

I have heard Mr. S.M. Abbas, learned counsel for the petitioner and Mr. Mehmood A . H Baloch, learned counsel for the respondent No. 1.

The only contention of Mr.S.M. Abbas before this Court has been that since the explanation given by the petitioner's counsel for his non‑appearance had not been found unsatisfactory by the learned District Judge for restoration of the appeal, the application could not have been rejected by him merely on the ground that the petitioner had failed to file his own affidavit. I find lot of force in this argument. The learned District Judge has placed reliance on two cases, one decided by the Supreme Court and reported as Zulfiqar Ali v. Lal Din and another 1974 S C M R 162 and the other decided by the High Court of Lahore and reported as Akhtar Hussain v. Settlement Commissioner, Lahore Division, Lahore and others (P L D 1966 (W.P.) Lahore 567). In the first case the ground urged by the appellant before the subordinate Court was that the appeal had been dismissed on account of negligence of the counsel of the appellant but not of the appellant himself. It was, therefore, held by the Supreme Court that it was as much the duty of the appellant to see that the appeal was properly and diligently prosecuted as that of the counsel and if the appellant engaged a counsel who was lacking in his sense of responsibility to the Court it is he who should have suffered and not the other side. In the second case, decided by the Lahore High Court, although it was held that for restoration of a case dismissed in default the explanation for non‑appearance should be given not only by the party concerned but also by his Advocate, but the facts of the case indicate that two counsel had been engaged by the party and both had remained absent on the date fixed for hearing of the case. The facts of the two cases are, therefore, clearly distinguishable and the cases are not attracted to the facts of the instant case. It may be pointed out that order 3 rule 1, C . P . C . clearly provides that appearance in any Court can be made by a party either in person or by his recognized agent or pleader except as otherwise expressly provided by any law for the time being in force. There is no contest on the point that in the instant case the petitioner was required to be present in person. Since the petitioner could appear through his counsel and he was in fact, being represented by one, the affidavit filed by his counsel could sufficiently explain his own or the petitioner's absence in the Court on the aforesaid date of hearing. The petitioner, in my opinion, was, therefore, not required to file his own affidavit alongwith that of his counsel. The cases on which the learned Judge has relied are clearly distinguishable and are not attracted at all to the facts of the present case. The learned counsel for the respondent has also failed to give any cogent reasons as to why the petitioner was bound to file his own affidavit when his counsel had already filed his own.

I, therefore, allow this petition and remand this case to the learned District Judge for disposal in accordance with the law. There will, however, no order as to costs, in view of the questions involved in this petition. Since the case before the learned District Judge pertains to 1978, it is expected that the learned District Judge will dispose of the matter expeditiously and if possible within a month after receiving this order.

M.Y.H.IS‑40/K Case remanded

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