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-- O. IX, R. 8-Application for restoration of review petition dismissed for non-prosecution-Counsel for petitioner contending that list for relevant day conveyed to him did not contain case in question Reason advanced not inspiring and nothing was said about petitioner himself as to why he personally failed to appear -Petitioner also failed to file affidavit -Opposing counsel noted case from same list and appeared in Court time and again on relevant date till case was dismissed for non-prosecution-Omission on part of petitioner's counsel, held, was nothing but negligence-Application dismissed in circumstances.

Zulifqar Ali v. Lal Din 1974 S C M R 162 rel.

(b) Civil Procedure Code (V of 1908)

-- O. IX, R. 8-Application for restoration of review petition Counsel for petitioner contending that since basic orders were obtained by opposite party through fraud etc. it was bounded duty of Court to suo motu set them aside-Contention repelled-Held, fraud as commonly known could not make a decree or order ab initio void but would make same only something voidable at option of affected party-Where affected party showed negligence in prosecuting its remedy it was not duty of Court to take up cudgels for him vis-a-vis his oblivion.

Yousuf Ali Khan, Bar-at-Law for Applicant.

This application has been moved for restoration of review petition (R. A. 12-C of 1985) which was dismissed on 19-10-1986 at 1-10 p. m. for non-prosecution.

2. Mr. Yousuf Ali Khan, counsel for the petitioner, claims that he had no notice of the date of hearing inasmuch as the list provided to him by the peon did not contain this case. He added that there was no reason on his part to have omitted to appear in it, particularly when he noted no less than two other cases from the same list and even appeared before two Benches on 19-10-1986. He urged that there were at least three sucl cases, namely : (1) Ghulam Yasin Khan etc. v. The Province of the Punjab etc Civil Miscellaneous No. 73-C of 1986 in Writ Petition No. 1110 of 1974 (2) Abdul Aziz Khan v. Ch. Muhammad Ashraf etc. Civil Miscellaneous No. 321 of 1982 in l.-C. A. No. 59 of 1977, and particular not shown where his affidavits were believed and the orders of dismissal for non-prosecution were set aside. Lastly he tried to canvass in the application itself that since the basic orders were obtained by the opposite party through fraud, etc. it was the bounden duty of this Court to have suo motu set them aside.

3. It is hard to believe that the list for the relevant day conveyed to the learned counsel did not contain this case. Apparently, it was omitted to be noted and the omission was nothing but negligence. In Zulfiqar Ali v. Lal Din etc. (1) it was held that the party as well as the counsel both were bound to "properly and diligently" prosecute their case and that for their neglect, the opposite side may not suffer. In Haji Ahmad Hassan v. Mian Aziz Ahmad etc. (2) although the clerk had omitted to note the case from the list due to his illness, yet it was thought that counsel too was supposed to have shown vigilance as also care to see and examine it. The corollary obviously was that if the counsel does not show the requisite vigilance, restoration could be validly refused.

4. I don't think any of the unreported cases referred to above by the learned counsel could be of any assistance to him. Firstly, these both relate to the same counsel, namely, Mr. Yousuf Ali Khan, and secondly, exactly the same reason of having not received the particular page of the cause-list was employed there. In a way, therefore, the present case shall be the third if not the fourth of the same type. It may present a well-considered modus of explaining non-appearance on the part of the learned counsel and evidently may not be eagerly accepted as an invariable practice. Even otherwise the assumption that the peon would remove a particular page of the list in case of a particular lawyer, could not be agreed to without reservation. This generally does not happen. Further, the whole cause list is unfailingly exhibited in the Bar room and thereby the facility of double-check is always available. Counsel could find out from, that list if any case or page relating to him was at all missing. To me, the reason advanced even though supported by an affidavit of the learned counsel, is not inspiring.

5, Nothing has been said about the petitioner himself as to why h personally failed to appear. Merely engaging a counsel did not absolve . him of the responsibility of carefully prosecuting his case. Omission on his part to file an affidavit was quite material. The opposite counsel had noted the case from the same list and appeared in the Court time and again till 1-10 p. m when it was dismissed for non-prosecution.

(1) 1974 S C M R 162 (2) 1979 C L C 629

6. To ask the Court to interfere suo motu because some fraud had been committed by the other side, is indeed too much to expect of it. Fraud as is commonly known does not make a decree/order ab initio void. It would make the same only something voidable at the option of the affected C party. If, therefore, the affected party shows negligence in prosecuting its remedy, it will not be the duty of the Court to take up cudgels for him vii-a-vis his oblivion. If the petitioner remained unsuccessful before the lower Court, failed in revision here and even neglected to pursue his Revision Application, the Court will manifestly be loath to do anything fort him.

7. As a result the application is dismissed in limine

M.Y.H. Petition dismissed.

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