ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

R. A. No. S – 35 of 2016

Date of hearing

Order with signature of Judge

Hearing of case

For hearing of main case

(Notice issued to applicants and advocate)

08.02.2019

Mr. Muhammad Ali Napar, Advocate for the applicants.

Mr. Zulfiqar Ali Naich, Assistant Advocate General Sindh.

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Learned counsel for the applicants has impugned an order whereby their application for restoration of the civil appeal pending before the Additional District Judge, Ubauro bearing Civil Appeal No.21 of 2011 was dismissed for non-prosecution and so also the application for restoration. The reason prevailed before the Additional District Judge was that previous conduct was not at par with equity. It is claimed that several other adjournment applications were moved on the same ground previously and, hence, they were not regular and punctual in appearance.

2. On the last date of hearing, respondent No.1, that is the contesting respondent, has appeared and he was informed that in case he remains absent on the next date, the matter shall be heard and decided on the basis of material available on record.

3. I have heard the learned counsel and perused the record.

4. No doubt that the applicants were not regular and punctual in appearance and they moved several applications for adjournment, but it is to be seen whether on the subject day, the counsel was really prevented from appearing in Court and proceeding with the matter. No doubt, there were several applications made on the same ground that the counsel was not well, however, this restoration application is supported by an affidavit of the applicant which was never rebutted. Since the contents of the affidavit have gone without a challenge, it ought to have been taken into consideration. The previous negligence would not count in respect of an application for adjournment if the request for adjournment was bonafide and genuine.

5. In my view, the affidavit, which has gone unrebutted and unchallenged, should have been taken into consideration and at the most the cost should have been imposed upon the applicants and their counsel. The appeal, which was filed by the applicants, was their right and in all fairness, the law requires adjudication on merit at least to the extent of first appeal.

6. In view of the above, I deem it appropriate to remand the case to the appellate Court to decide the appeal afresh after providing one more opportunity to the applicants’ counsel subject to cost of Rs.10,000/- (ten thousand). Out of Rs.10,000/-, Rs.5,000/- (five thousand) to be deposited with the High Court Clinic, whereas, the other half of the cost is for the respondents, who may receive it from this Court. Cost be deposited within seven (07) days. Additional Registrar shall submit compliance report of cost required to be deposited within seven (07) days of time expired.

7. The Revision Application as such is disposed of with direction to the appellate Court to decide the case preferably within six (06) weeks from today. In case the applicants’ counsel remains absent or moves any application for adjournment, the appellate Court shall be at liberty to dismiss it forthwith.

J U D G E

Abdul Basit