IN THE HIGH COURT OF SINDH

AT LARKANA

 

 

 

Civil AppealS-02of 2021    :           Syed Muhammad Imranullahvs.

Muhammad Azeem &Others

 

For the Appellant                 :           Mr. Abdul Rahman A. Bhutto, Advocate

 

For the Respondents          :           Mr. Idrees Ahmed Mangi, Advocate

Mr. Liaquat Ali Shar, Additional Advocate General, Sindh.

                                                           

Date of hearing                    :           14.02.2022.

 

Date of order                         :           14.02.2022

 

ORDER

 

Agha Faisal, J.(1). Deferred. (2&3). Vide Order dated 10.09.2020, the learned District Judge, Larkana was pleased to dismiss the appellant’s appeal for non-prosecution, on account of appellant’s having remained absent for 14 dates of hearing.  It is considered illustrative to reproduce the dismissal order here-in-below:

 

“In the morning, the matter called repeatedly but neither appellant nor his counsel appeared.  Its 1:00 p.m. but position is same.  Respondent No.1 being attorney of rest respondents and their counsel is present.

 

2.             Perusal of record shows that instant appeal was admitted on 08.11.2019 and was fixed on 05.12.2019 for hearing.  Today is 14th date of hearing but appellant and his counsel remained absent on all dates of hearings shows that they have no interest to proceed the Civil Appeal.  Under these circumstances, Civil Appeal is dismissed in default for non-prosecution.”

 

2.            The appellant filed an application for restoration, which was dismissed vide order dated 26.10.2020, the operative findings are reproduced here-in-below:

 

“Now returning to the merits of the present application, wherein learned advocate for appellant annexed his affidavit inspite of affidavit of the appellant.  Although as per cause list he was busy before Honourable Apex Court, but he would have sent intimation to this court through his junior partners or through appellant but he has chosen remain absent as per his previous attendance record in matter.  Thus his as well as appellant willful absence, given force to the contention of learned advocate for respondents that appellant had no interest due to which he chose to remain absent.  In such type of situation the affidavit of the counsel was discarded, the guidance can be taken from the case law reported in PLD 2004 Lahore 21.

 

8.             Pursuant to above discussion, it is appeared that in such type of situation the affidavit of the appellant is essential to show his vigilance but same is lacking in this matter.  Even it is also lacking that learned advocate for appellant had deliberately failed to appear before this court to pursue the matter.  Thus the appellant appeared to be indolent and not vigilant therefore law did not favour such type of indolent litigant.

 

9.             In view of above facts and circumstances, I am of the humble opinion that instant application merits no consideration, hence dismissed.”

 

3.            Learned counsel does not controvert the findings contained in the impugned orders, however, rests his appeal on the contention that the appealought not to have been rejected on mere technicalities and on the contrary ought to have been decided on merits.  It is imperative to observe at this juncture that the chronic truancy of the appellant before the learned court has not been denied.

 

4.            Heard and perused. The truancy of the appellant from the proceedings under scrutiny is prima facie apparent and the same has also been admitted by the appellant's counsel. Under such circumstances it was the prerogative of the learned appellate court to determine the proceedings and that is what appears to have been done. Appellant remained unable to justify the persistent absence before the concerned court and no case has been made out for this court to consider the same under its jurisdiction.

 

5.            The august Supreme Court has observed in Nadeem H Shaikh[1] that the law assists the vigilant, even in causes most valid and justiciable.The fixation of cases before benches / courts entails public expense andtime, that must not be incurred more than once in the absence of areason most genuine and compelling. Delay caused by the appellant indoing the needful is exasperating and long drawn ineptitude cannot be allowed to further encumber pendency of the Courts.

 

6.            While this Court is cognizant of Order 41 Rule 31 CPC, yet at this stage no case has been set forthwith to entertain the present appeal in view of the reasoning stated above. As a consequence hereof this appeal is hereby dismissed in limine.

 

 

                                                                    JUDGE

 

                                                         

 


[1]Per Qazi Muhammad Amin Ahmed J. in SECP vs. Nadeem H Shaikh & Others (Criminal Appeal 518 of 2020);Order dated 27.10.2020.