ORDER SHEET
IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR
Civil Appeal No S-4 of 2014
Civil Appeal No S-5 of 2014
Haji Gul
Muhammad---------------------------------------------Appellant
Vs
Mst. Aasia (Deceased) Through
Legal Heirs & Others----Respondents
Date
of hearing: 03.03.2015
Date
of Order: 03.03.2015
Mr.Nisar Ahmed Bhanbhro, Advocate for the appellant.
Mr.Muhammad Nawaz Soomro, Adv: for resp: No.1 (a)
to 1 (e) and 2.
ORDER
MUHAMMAD JUNAID GHAFFAR, J: - Through instant appeal(s) the
appellant has impugned order dated 17.2.2014, whereby, the application(s)
seeking restoration of appeals dismissed for Non-prosecution under Order 41
Rule 19 read with Section 151 CPC have been dismissed by the III-Additional
District Judge, Khairpur.
2. Learned Counsel for the appellant
submits that two appeals bearing No.88 of 2010 and 89 of 2010 were filed by the
appellants before the IIIrd Additional District Judge,
Khairpur, against a common judgment dated 21.4.2010
and decree dated 28.4.2010 passed by the Senior Civil Judge, Khairpur, in F.C. Suit No.24 of 2007 and 42 of 2007 and the
said appeals were fixed before the
Additional District Judge, Khairpur, on 23.6.2012, when
they were dismissed for Non-prosecution, against which restoration applications
were filed under Order 41 Rule 19 CPC, duly supported by the affidavit of the Counsel
for the appellant, however, the same have been dismissed vide impugned order(s)
referred to hereinabove. It has been contended by the learned Counsel that on
23.6.2012 the matter was not fixed for regular hearing as the same is not reflected
from the order/ case diary. Per learned Counsel the appeal(s) could not have
been dismissed under Order 41 Rule 17 CPC, as the same were not fixed for
regular hearing, but for service upon the official respondents. It has been
further contended that a genuine reason was stated in the affidavit by the Counsel
for the appellant, whereas, the restoration application(s) were also filed
within time. In support of his contention, learned Counsel has relied upon the
case of Muhammad Nazir Chaudhry
Vs Punjab Province (PLD 1978 Lahore 1350), Goswami Krishna Murarilal Sharma (1983 PSC 355), Ashraf
Bibi V/s Lahore Municipal Corporation (1992 CLC 2350),
Mst. Hameeda Shamim V/s Deputy Commissioner (2009 MLD 556), Abdul Waheed Khan V/s Aleemuddin Khan (2001
CLC 333),Lahore Development Authority Through Director
General LDA, (2009 YLR 2013).
3.
Conversely, learned Counsel for
the private respondents submits that the appellants have not been vigilant
enough to pursue their appeals which were pending for two years when they were
dismissed for non-prosecution. Per learned Counsel on 23.6.2012 the matter was
fixed for final arguments and not for service upon the official respondents.
Learned Counsel further contends that restoration application was filed by the Advocate
of the appellant along with his own affidavit, whereas, no affidavit of the
appellant was filed and nothing has been brought on record to justify the
absence of the appellant before the Court. In support of his contention learned
Counsel has relied upon the case of Barkat
Ali vs. Muhammad Nawaz (PLD 2004 SC 489) and Shah Wali V/s Allah Baksh (1999 CLC 452).
4. I have heard both the learned Counsel,
perused the record and the case law relied upon by the parties. By consent of
both the learned Counsel instant appeals are being finally disposed of at katcha peshi stage.
5.
On perusal of the record it
appears that the appellant had preferred Appeals bearing No 88 of 2010 and 89
of 2010 before the IIIrd Additional District Judge, Khairpur, against a common judgment dated 21.4.2010 and
decree dated 28.4.2010 passed by the Senior Civil Judge, Khairpur,
in F.C. Suit No.24 of 2007 and 42 of 2007. The appeals were fixed on 23.6.2012 and
were dismissed by the IIIrd Additional District Judge,
Khairpur, in the following terms:-
“Case Diary
23.6.2012
Sd/-
III.Addl:District Judge,
Khairpur
6.
The appellant thereafter preferred application(s) under Order 41 Rule 19
CPC, seeking re-admission of the appeals dismissed for non-prosecution which
were duly supported by the affidavit of the advocate for the appellant. The
learned Appellate Court vide order dated 17.2.2014 had dismissed the said
applications in the following terms
“5. Heard the learned Counsel for both the parties and perused the
entire material available on the record and have respectfully gone through the
case law relied at bar. The facts of the case relied at bar are distinguished
from the facts of the case in hand.
6. From perusal of the record, it appears that on 23.6.2012 the
appeal was fixed for hearing but same got dismissed in default for
non-prosecution as the appellant himself along with his Counsel remained absent
without any intimation. Perusal of diaries reveals that on three dates of
hearing prior to the date on which the appeal was dismissed, the appellant
remained absent from this Court, which reflects his dearth of interest in proceedings
with the appeal filed by him. The instant application in hand has been drawn
and drafted by the learned Counsel for appeal and in support of said
application, advocate for the appellant has filed his personal affidavit but in
the said affidavit, it has not been explained as to why the appellant remained
absent on the date of hearing of appeal when same was called by this Court. Perusal
of case diaries reveals that since the date of filing of the restoration
application, the appellant has mainly remained absent without any intimation.
It is duty of the party to appear and pursue their causes pending before the
Courts because law always leans in favour vigilant and
nor the indolent, even the appellant has failed to appear before this Court and
file his affidavit in support of the application as to why he remained absent
on the date of hearing when appeal was called. The Honourable
Supreme Court of Pakistan has disapproved the practice of filing affidavit by
advocate in relation to facts of the case. Reliance is place to the case of Barkat Ali vs. Muhammad Nawaz,
reported in PLD 2004 Supreme Court 489.
7. Looking to
the facts and circumstances of the case, application merits no consideration
and same is accordingly dismissed, with no order as to costs.”
7. From
perusal of the aforesaid order, it appears that the learned Appellate Court has
dismissed the restoration application(s) on two grounds. One, that the restoration
application was drawn and drafted by the Counsel for the appellant along with
his personal affidavit, whereas, in the said affidavit it was not explained as
to why the appellant remained absent on the date of hearing of appeal. Secondly,
the affidavit filed by the Counsel for the appellant in support of the facts of
the case cannot be accepted and relied upon in view of the judgment of the Hon’ble Supreme Court in the case of Barkat
Ali vs. Muhammad Nawaz (PLD 2004 SC 489),
wherein, the Hon’ble Supreme Court has disapproved the
practice of filing of affidavits by the advocates in support of the facts of
the case.
8. Insofar
as filing of Affidavit by the Counsel for the appellant in the instant matter is
concerned, I am of the view that the restoration application was filed by the
Counsel for the appellant against dismissal of appeal(s) by the Appellate Court,
whereas, there is no restriction in law to file such affidavit by the Counsel appearing
on behalf of a party as filing of such affidavit is not in respect of the facts
of the case and is only to the extent of his inability to appear before the
Court on the given date. Therefore, I am of the view that insofar as reliance
on the case of Barkat Ali (Supra)
is concerned, the same is misconceived, as the facts of the instant matter are
entirely on a different footing as in the instant matter the affidavit has been
filed by the Counsel for the appellant is support of his non-appearance, and
not on the facts of the case as agitated by the learned Counsel for the
respondents. Further, insofar as presence of the appellant before the Court is
concerned, though the appellant is required to be vigilant to pursue its case, but
once a Counsel is engaged by the appellant in a matter, then it is not mandatory
for the appellant to be present before the Court on each and every date of
hearing, as the presence of the Counsel is sufficient enough to pursue the case
on his behalf. There is no restriction nor one could
be pointed out by the learned Counsel for the respondents in this regard, that
as to what prevailed upon the learned Appellate Court to insist and require
presence of the appellant when the Counsel was already engaged in the matter. Though
the Counsel for the appellant was not present before the Court on the fatal
date, however, this does not mean that in such an eventuality, the appellant
must also be present before the Court. Further the restoration application was
also filed immediately without delay and within the limitation period duly
supported by Affidavit of the Counsel for the appellant in which a personal
ground was taken by the Counsel for the appellant for his inability to be
present before the Court on the date on which the appeal(s) were dismissed by
the Appellate Court. It is also pertinent to note that in terms of Order 41
Rule 19 CPC, the Court is required to see, before allowing any application for
re-admission of appeal dismissed in default, that as to whether any sufficient
cause was shown which prevented the party or the Counsel to appear before
the Court when the case was called for hearing. In the instant matter, the learned
Appellate Court has failed to examine this aspect of the case, and has rather
non-suited the appellant on altogether irrelevant grounds, which are not
required to be examined in terms of Order 41 Rule 19 CPC. I am of the opinion
that in the given facts and circumstances of the case the Counsel for the
appellant had been able to show sufficient cause before the Court for his
nonappearance, duly supported by his personal affidavit, which has not been controverted and dislodged to an extent that in can be
discarded summarily, hence, the learned Appellate Court ought to have allowed
the restoration application(s).
9.
In view of hereinabove facts and circumstances of the instant case, I am
of the view that sufficient cause was shown by the Counsel for the appellant
for re-admission of the appeal in terms of Order 41 Rule 19 CPC, which the
learned Appellate Court has failed to take notice of. Accordingly, the impugned
order(s) dated 17.2.2014 passed in respect of the two appeals as stated
hereinabove, are hereby set aside with directions to the Appellate Court to
treat the appeal(s) as pending before it with further directions to decide the
same on merits strictly in accordance with law, preferably within a period of
four months from the date of receipt of this order. The appellant is also
directed to proceed with the matter before the Appellate Court with due diligence
and shall not seek un-necessary adjournments in the matter.
10. Both the appeals are allowed in the above
terms.
JUDGE
Imran