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First Appeal from Original Order No. 196 of 1975, decided on 28^th February, 1983.

‑‑‑O. XLI, R. 19 & 0. XLIII, R. 1 (t)‑‑ Application for re‑admission of appeal dismissed for default‑‑ Appeal‑ ‑Order‑sheet of Appellate Court below clearly showed that counsel for appellant appeared in Court and Presiding Officer of Court after duly recording presence of counsel in his own handwriting adjourned case after giving next date of hearing‑ Assertion of appellant that on fixed date of hearing his counsel appeared in Court, but was informed by reader that Presiding Officer stood transferred and Court had been abolished, was belied by patent facts on record‑‑Other contradictory contention of appellant that his counsel did not appear in Court on fixed date of hearing as he could not note in his diary correct date of hearing, also proved to be baseless, because if according to counsel fixed date of hearing was wrong, then counsel was under obligation to disclosed as to what date of hearing was noted in his diary Counsel s failure to show any such date would render assertions of appellant as baseless and contradictory‑‑ Assertions of appellant, held, was rightly repelled by Appellate Court below.

‑‑‑ O. XLI, R. 19 & 0. XLIII, R. 1 (t)‑‑Re‑ad mission of appeal‑‑ Discretion of Court, exercise of‑‑Where Appellate Court below in refusing to restore appeal or to condone delay in applying for re‑admission of appeal had exercised its discretion properly, order thereof, below, held, could not be interfered with in appellate jurisdiction of High Court n absence of any error or wrong approach of Court below.

‑‑‑O. XLI, R. 19 & O. XLIII, R. 1(t)‑‑Re‑admission of appeal‑‑Courts, though, were obliged to favour adjudication on merits and could re‑admit appeal dismissed for default, but that trend, held, would not seem to permit violation of express statutory provision or to undo rights which had accrued in favour of party with afflux of time as a result of dismissal of appeal.

Kh. Gul Muhammad Butt for Appellant.

Iftikhar‑ul‑Haq for Respondent.

Date of hearing: 28th February, 1983.

This First Appeal from Original Order is directed against the judgment and decree of the learned District Judge, Gujranwala dated 10‑9‑1975, where in a suit for specific performance, he dismissed the appeal as well as the application for readmission of the appeal after recording the finding that there was no sufficient cause shown for the absence of the appellant on the previous date of hearing and furthermore no ‑good cause was shown for the delay in filing the application for restoration and re‑admission of the appeal.

2. The brief facts relevant for the purposes of this appeal are that the appeal against the judgment and decree of the Civil Judge was fixed for hearing before the learned Additional District Judge, Gujranwala on 2‑1‑1974. It is further the case of the appellant that on 2‑1‑1974 the Presiding Officer already stood transferred and Court abolished and information to this effect was given to the learned counsel by the Reader of the Court when he went to the Court on that day. The appellant thereafter waited for a notice from the Court concerned. According to the learned counsel it was on 5‑9‑1974 that the respondent informed the appellant that his appeal stood dismissed on 6‑2‑1974. The appellant thereafter on 7‑9‑1974 filed an application under Order XLI, Rule 19 of the C.P. C. for readmission of the appeal accompanied by an affidavit of the learned counsel who had appeared on 2‑1‑1974.

3. On going through the record the pleas of the appellant do not appear to be correct. It is borne out from the record and the same has already been duly taken note of by the Additional District Judge that on 2‑1‑1974, none else than the learned counsel for the appellant appeared before the Additional District Judge who in his own handwriting recorded his presence and that of the counsel of the opposite side and then adjourned the case to 6‑2‑1974. It was on 6‑2‑1974 that the case was dismissed for non‑appearance of the appellant and his counsel.

4. Thereafter on 8‑11‑1974 an application under Order XLI, Rule 19 read with section 151 C.P. C. was filed in the Court of learned Additional District Judge. This was later supported by an affidavit from Mr. Suleman Chaudhary, Advocate dated 16‑1‑1975. On this affidavit being filed the learned Additional District Judge sent the case to the learned District Judge with the remarks that he may himself try the matter because of the affidavit of the learned counsel in this case a; regards the conduct of his court proceedings. The learned District Judge then took up the case on his file and passed the impugned order dismissing the appeal as well as application for re‑admission of the appeal.

5. The learned counsel for the appellant has contended that the District Judge was obliged to make an inquiry and should have associated Mr. Suleman Chaudhary, Advocate before disposing of the applications before him. The learned counsel for the respondent has replied that the grounds raised in support of application for re‑admission of the appeal and extension of time lacked merit because the order sheets of 2‑1‑1974 and 6‑2‑1974 made it abundantly clear that on the former date Mr. Suleman Chaudhary, Advocate as well as counsel for the opposite side were present and their presence was duly recorded by the Presiding Officer himself. These facts have been duly pleaded by the respondent. Moreover, it is pointed out that the very affidavit of the learned counsel filed in support of the applications was evasive because he had taken up the plea that he was not present in Court on 2‑1‑1974 nor this was a date recorded in his diary. I have noticed that the learned counsel stopped short of saying as to what date was actually recorded in his diary in regard to this appeal. He should have given a further explanation for the date so recorded in his diary and the fate of the case and what action he took. According to the counsel there was no need for any enquiry when the facts were so patent on the face of the record. The counsel for the opposite side Ch. Sardar Khan, Advocate had also supported the correctness of the proceedings as recorded by the learned Additional District Judge on 2‑1‑1974.

6. I have considered the submissions of both the learned counsel. The assertion of the appellant that on 2‑1‑1974 the Presiding Officer stood transferred and Court abolished is belied by the record. The proceedings of 2‑1‑1974 are in the handwriting of the learned Additional District Judge himself. Nothing has been pleaded or brought on the record that the Court stood abolished except a mere bald assertion being made in the application under Order XLI, Rule 19, C.P. C. The averment in the application, therefore, is belied by the patent facts on the file. This basic question having been answered against the appellant the subsidiary question being raised i.e. non‑appearance of the learned counsel for the appellant on 2‑1‑1974 because it was not noted in his diary loses much weight. Even if this plea of noting of wrong date of hearing in the diary was to be relied upon, then the learned counsel was under an obligation to disclose as to what actual date of hearing was noted in the diary when according to him 2‑1‑1974 was not the date of hearing so noted. It is also difficult to appreciate the contents of the application under Order XLI, Rule 19, C.P. C which are contrary to the plea being raised by the learned counsel because in that application the plea was that the case was fixed on 2‑1‑1974, but the Presiding Officer stood transferred and Court abolished and, therefore, the reader informed him of these facts and asked him to wait for the next date. The version of the appellants has been, therefore, rightly repelled by the learned District Judge. The learned District Judge has acted in proper exercise of his discretion in refusing to restore the appeal or condone over seven months delay in applying for re‑admission of the F appeal. I find no error or approach or any other justification to interfere. The appeal therefore stands dismissed. 7. The learned counsel for the appellants, however argued that the Courts favour adjudication on merits and therefore, in this case also the orders may be passed for re‑admission of the appeal. The submission of the learned counsel is good in so far as it goes to the extent that the Courts favour adjudication on merits but that trend would not seem to permit this anxiety to go against the express statutory provision or to undo the rights which accrued in favour of a party with the afflux of time as a result of dismissal of the appeal.

This appeal fails and is hereby dismissed with costs.

H. B. T. 1M‑19/L Appeal dismissed.

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