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Petitioner: AUQAF DEPARTMENT, THROUGH CHIEF ADMINISTRATOR, LAHORE VS Respondent: SAEED AHMAD
1992 M L D 2370
1992 M L D 2370
[Lahore]
Before Muhammad Arif, J
AUQAF DEPARTMENT, through Chief Administrator, Lahore and another‑‑‑Petitioners
versus
SAEED AHMAD‑‑‑Respondent
Civil Revision No.236/BWP of 1987, decided on 18th May, 1992.
Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.XLI, R.19 & S.115‑‑‑Dismissal of application for restoration of appeal in default of appearance‑‑‑Application for restoration of said application dismissed by First Appellate Court‑‑‑Validity‑‑‑First Appellate Court had considered case of petitioners threadbare and conclusion drawn by it had not been shown to be suffering from any infirmity in law‑‑‑First Appellate Court had rightly observed that only one of three counsel retained by petitioners had filed application in question, on the ground that he could not attend to hearing on specific date as he was busy in other professional work but he had not given his affidavit in support of his application‑‑‑Findings recorded by First Appellate Court were not shown to be suffering from any jurisdictional error‑‑‑Finding of fact that petitioner was negligent in prosecuting its case before Courts below was supported by the material brought on record by parties‑‑‑Impugned order was declined to be interfered.
M. Shamsher Iqbal Chughtai for Petitioners.
Date of hearing: 18th May, 1992.
ORDER
The Auqaf Department through Chief Administrator of Auqaf, Lahore and District Manager Auqaf, Bahawalpur have filed this petition under section 115, C.P.C. challenging the order dated 24‑2‑1987 passed by Additional District Judge, Bahawalpur whereby petitioners' application, seeking restoration of their earlier application, was dismissed. There is no need for a detailed discussion of the .facts leading to the filing of this petition by the Department. Suffice it to say that a suit for declaration and perpetual injunction filed by Saeed Ahmad respondent against the petitioner was dismissed by Syed Ejaz Hussain Shah, Civil Judge, llnd Class, Bahawalpur on 3‑1‑1983. They filed an appeal there against which was dismissed in default on 6‑5‑1984. An application of the petitioners seeking restoration of the appeal was also dismissed in default by the then learned Additional District Judge, Bahawalpur on 6‑1‑1985. On the same date, the learned counsel for the petitioners moved this application for restoration of the afore referred application on the ground that he remained busy in conducting other cases in other Courts and on inquiry at 1‑00 p.m. it transpired that the application had been dismissed for default. The application was contested on behalf of the respondent who pleaded that the appeal (Miscellaneous Appeal No.1/85 was fixed for arguments for 5‑5‑1984 and was adjourned on that date to 6‑5‑1984 at the request of Malik Ghafoor Ahmed, the learned counsel for the petitioners. As nobody appeared on behalf of the petitioners on 6‑5‑1984, their appeal was dismissed in default on the said date. The application filed for restoration of appeal was also dismissed in default on 6‑1‑1985 as there was no representation on behalf of the petitioners on that date either.
2. Initially, the then learned Additional District Judge framed an issue regarding the existence of sufficient grounds for the restoration/re‑admission of appeal but on a subsequent application of the petitioners this issue was amended as follows:‑‑
"1. Whether there are sufficient grounds for re‑admission/restoration of application moved for the restoration of appeal?"
After the parties had adduced their evidence for and against the above issue the learned Additional District Judge, Bahawalpur heard the arguments and dismissed the application vide the impugned order dated 24‑2‑1987 observing that the Department was negligent in pursuing the case and had failed to prove any sufficient cause for the restoration of the application dismissed in default. It was specifically observed that the petitioners had engaged three Advocates in this case but had failed to bring an affidavit of any one of them in support of the plea taken in the application. Regarding the plea that Muhammad Ibrahim A.W.3 could not attend the proceedings on 6‑1‑1985 as he was on casual leave on that date it was observed that the said PW had admitted in his cross examination that the Department used to depute somebody else for pursuing the cases in his‑ absence which clearly indicated that the story regarding Muhammad Ibrahim AW‑3 being on casual leave on 6‑1‑1985 was manoeuvred by the Department afterwards in order to prove his absence.
3. Learned counsel has reiterated the stand of the petitioners before the learned Additional District Judge to the effect that the rule of procedure should not be so interpreted as to defeat the process of law and refers to Salamat Bibi and others v. Settlement & Rehabilitation Commissioner, Multan (PLD 1966 SC 467) and Shaukat Hussain and others v. Mst. Qaisarah Begum and others (1988 SCMR 263) in support of the same.
4. There is no cavil with the proposition advanced by the learned counsel on the strength of the precedent cases. The learned Additional District Judge has considered the case of the petitioners threadbare and the conclusions drawn by him have not been shown to be suffering from any infirmity in law. It has been correctly observed that only one of the three Advocates retained by the petitioners in this cause had filed the application on the ground that he could not attend to the hearing on 6‑1‑1985 as he was busy in other professional work but he has not given his affidavit in support of his application. It is not denied that the first call in the case was made at 10‑30 a.m. on 6‑1‑1985 and it was only at 12‑30 pm on the said date that the same was dismissed in default after making out the second call then. The findings by the learned Additional District Judge have not been shown to be suffering from any jurisdictional error. The finding of fact that the petitioner-Department was negligent in prosecuting the case before the lower Court is supported by the material brought on the record by the parties. This petition lacks merit and is liable to be dismissed in limine. So be it.
AA./A‑224/L Revision dismissed.