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Petitioner: PAKISTAN DAY MEMORIAL COMMITTEE AND ANOTHER VS Respondent: MIAN ABDUL KHALIQ & JUDGMENT
Court Name: Lahore High Court Judge(s): Muhammad Ilyas Title:PAKISTAN DAY MEMORIAL COMMITTEE AND ANOTHER vs MIAN ABDUL KHALIQ &
JUDGMENT
Reported As: 1984 CLC 3332 Result: Petition dismissed Judgment JUDGMENT ' This is a Petition (Civil Miscellaneous Petition No, 2814.0 of 1984) for restoration of an appeal. 2. The appeal, which was dismissed for non-prosecution on 2nd June, 1984 was filed by the appellants, namely, Pakistan Day Memorial Committee and another against the respondent, Mian Abdul Khaliq and Company. The appeal was directed against the judgment and decree by which the appellants were required to pay a sum of Rs, 11,97,215 to the respondent. At the request of the petitioners (appellants), execution of the impugned decree was stayed. The appeal was admitted to a regular hearing on 6th May, 1981 but its hearing could not be concluded during the last three years, for one reason or the other, although it was fixed for hearing on several occasions. On 8th May, 1984, also, it was fixed for arguments when Mr. Hakam Qureshi, Advocate, learned counsel for the appellants, requested for adjournment stating that his sister-in-law had suffered an accident. His request was not objected to by Sardar Sami. Hayat, Advocate, learned counsel for respondent. With a view to ensuring their availability on the next date, I asked them to indicate the date and time on which it would be convenient for them to present arguments. They agreed to argue the appeal on 2nd June, 1)84 at 8-30 a. m. I, therefore, adjourned the appeal to 2nd June, 1984 and directed that it shall be taken up at 8-30 a. m. As I was keen to finalize the hearing of appeal I also directed that the office shall not fix any other work before me on that date except two cases in which actual dates had already been given. On 2nd June, 1984, when the appeal was called on at 8-30 a.m., learned counsel for the respondent was present but none appeared on behalf of the
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appellants. The appeal was, therefore, dismissed for want of prosecution. On the same day, the instant petition for re-admission of appeal was submitted by learned counsel for the petitioners. 3. In the petition, no explanation has been offered for absence of the two appellants on the date when the appeal was dismissed in default. As for the absence of their counsel, the following explanation was given :- "That Hakam Qureshi, Advocate, counsel for the appellants in the above-noted appeal had also to appear in another case entitled Ch. Ijaz Hussain v. Returning Officer, Sahiwal before the Election Authority headed by Mr. Justice Mahboob Ahmad on the ground floor. Hakam Qureshi, Advocate deputed his assistant Khanzada Saif Ullah Khan, Advocate to watch the case in the Court of Mr. Justice Ch. Muhammad Ilyas and to inform Hakam Qureshi, Advocate as soon as the above-noted appeal is called for hearing. Hakam Qureshi, Advocate was himself enquiring as to when the case before the Election Authority was likely to be called so that .He may be able to appear in both the cases. At about 8-30 a. m. Today while Hakam Qureshi, Advocate was present outside the Court of the learned Election Authority while Khanzada Saif Ullah Khan, Advocate was on his way to the Court of Mr. Justice Ch. Muhammad Ilyas the above-noted appeal was called for hearing and was dismissed in default. Khanzada Saif Ullah Khan reached the Court of Mr. Justice Ch. Muhammad Ilyas hardly two minutes and was informed that the appeal had been dismissed just now while Hakam Qureshi, Advocate was coming to the Court of Mr. Justice Muhammad Ilyas he was informed about the dismissal of the appeal by the said Assistant who usually assists him in his cases of High Court." ' Mr. Hakam Qureshi, Advocate and Khanzada Saif Ullah Khan, Advocate filed affidavits in support of the above explanation. 4. The petition was resisted by the respondent. It was contended by the respondent that since there was no explanation for the absence of appellants, the petition was not maintainable and deserved to be dismissed on that ground alone. In regard to the explanation of their counsel, the reply of the respondent was as follows :- "That the para. In so far as it relates to the appearance of Mr. Hakam Qureshi, Advocate in another cases entitled Ch. Ijaz Hussain v. Returning Officer, Sahiwal, before the Election Authority is not denied. The rest is incorrect and hence denied. Mr. Hakam Qureshi is counsel for respondent No, 3 in the said case which was taken up for hearing at about 12 o'clock on 2nd June, 1984 and adjourned to 14th July, 1984 because the counsel for the petitioner was not available and Mr. Hakam Qureshi had no objection to the adjournment. It may also be pertinent to state here that the Election Authority commences its work after the break i. e: 11.00 a. m. And the petitioner's learned counsel, therefore, had not justification to go there in preference to the conduct of appeal in this Court which was fixed for 2nd June, 1984 at 8-30 a. m. By a Special order of Mr. Justice Muhammad Ilyas on the previous date of hearing passed in the presence of both the parties. The appeal was called out several times and none appeared for the appellant. The appeal was, therefore, dismissed after sufficient awaiting for the appellant and its counsel. The allegation of Mr. Saif Ullah Khan reaching the Court 'hardly two minutes' is false and in any case is vague to give any benefit to the appellant." ' Mian Abdul Khaliq filed an affidavit in terms of the above reply. 5. Learned counsel for the petitioners took exception to the order of the dismissal of the appeal in default by contending that since it had been admitted to a regular hearing, it should have been decided on merits after hearing the respondent's counsel even though the appellants and their counsel were not present on 2nd June, 1984. As for the absence of the appellants on the said date, his plea was that since the appeal had been filed by the Government, none of the appellants had appeared on the day when the appeal was dismissed in default. He maintained that there was sufficient cause for his own absence from the Court. It was also submitted by him that the appeal
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should be restored because the petition for its restoration was made on the same day when it was dismissed for non-prosecution. He cited Federation of Pakistan etc. v. Muhammad Hanif (1), Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another (2) ; Seth Shivarttan G. Mohatta and another v. Messrs Muhammadi Steamship Co. Ltd. (3), Mst. Baigan v. Abdul Hakim and another (4), Muhammad Haleem and others v. H. H. Muhammad Naim and others (5), Muhammad Shafi and 2 others v. Haii Ibrahim and 8 others (6) and Sorabji Rustomji Parsi v. Ramjlal Devjibhai Pardeshi (7) to support his arguments. 6. On the other hand it was submitted by learned counsel for the respondent that in the absence of the appellants, the appeal could not be decided on merits. According to hint, the failure of the appellants to offer any explanation for their non-appearance was fatal to the petition in hand inasmuch as for securing re-admission of the appeal it was necessary not only for their counsel but also for the appellants to show sufficient cause for their absence. In regard to the explanation of their learned counsel, the plea of learned counsel for the respondent was that on his own showing learned counsel for the appellants was not busy before the Election Authority and was simply present outside the Court room of the Chairman of the said Authority, namely, Mr. Justice M. Mahboob Ahmed, to inquire about the time when the case of Ch. Ijaz Hussain was likely to be taken up by the learned Authority. The argument proceeds that since specific time had been fixed by this Court for the hearing of appeal, learned counsel for the petitioners' (appellants) ought to have come to this Court at 8.30 a. m., if not a bit earlier, instead of engaging himself in making inquiries in relation to another case which was actually taken up after 11-00 a. m. He added that if at all the said inquiries were necessary, the same could be made by Khanzada Saif Ullah Khan, Advocate, who, according to learned counsel for the petitioners, usually assists him in High Court cases and was available with him on 2nd June, 1984 also. It was pleaded by learned counsel for the respondent that the appeal could not be re-admitted on the short ground that the (1) 1981 CLC 130 (2) PLD 1975 SC 678 (3) PLD 1965 SC 669 (4) 1982 SCM R 673 (5) PLD 1969 SC 270 (6) 1983 CLC 2197 (7) AIR 1924 Born. 392 ' petition for its restoration was made on the same day when it was dismissed in default. It was stressed by learned counsel for the respondent that since there was no explanation for the absence of the appellants, and their learned counsel was negligent in attending to the appeal, it was not a fit case for re-admission of the appeal. In this connection, reliance was placed by him on Zulfiqar All v. La! Din and another (1), Haji Ahmed Hasan v. Dr. Mian Aziz Ahmed and 5 athers (2), Abdul Shahid and another v. Sh. Azim Bakhsh (3), Zakaullah v.. Mst. Sultan Jehan Begum (4), Puniab Province v. Malik Muhammad Azam (5) and Akhtar Hussain v. Settlement Commissioner, Lahore Division, Lahore and others (6). 7. Before adverting to the other points involved to this case, I would like to deal with the contention of learned counsel for the appellants that on 2nd June, 1984, the appeal should have been disposed of on merits instead of dismissing it in default even if none had appeared on behalf of the appellants. The only authority cited by him for the above proposition is the case of Federation of Pakistan, etc. Decided by Aftab Farrukh, J. (as he then was). One of the observations made in that case was that when an appeal is admitted to hearing, it should be disposed of on merits and not on the "short ground of default". As against this, there is chain of authorities to the effect that in the absence of an appellant, his appeal cannot be decided on merits, and it is discretionary with the Court seized of his appeal to dismiss the appeal in default or adjourn it to another date for hearing. Some of the authorities in point are Messrs S. M. Abdullah & Sons v. Messrs Pakistan Mercantile Corporation Ltd. And another (7), Kundha Singh, Deceased represented by Gurnam Singh and others v. The Punjab State and others (8), Musaliarakath Muhammad v. Manaviakrama the
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Zamorin Rajah Avergal and others (9), Taher Sheikh Chowkidar and others v. Otaruddi Howladar and others (10), Basudev v. Bideshi and another (11) and Nasir Khan v. Itwari and others (12). I have already followed the view taken in the case of Messrs S. M. Abdullah & Sons while deciding the case Sh. Abdul Rehman v. Mst. Musarrat Begum and another (13). Since the consensus of opinion is against the deciding of appeal on merits in the absence of the appellant, I, with respect, express my inability to share the view taken in the case of Federation of Pakistan etc. I, therefore, bold that since on 2nd June, 1984, none had appeared to' prosecute the appeal, filed by the petitioners, I could not decide it on merits. I had the discretion to dismiss it in default or adjourn it to some other date but since the appellants or any one associated with, or sub-4 ordinate to them, or the appellants' counsel or his assistant or clerk did not appear at the appointed time i. e. 8.30 a. m. Not anyone of them had turned up earlier to make request for taking up the case after 8- 30 a. m. Or adjourn it to another date I was not inclined to show any (1) 1974 SCMR 162 (2) 1979 CLC 629 (3) PLD 1981 SC 200 (4) 1980 SCM R 896 (5) 1982 CLC 1475 (6) PLD 1966 (W. P.) Lab. 567 (7) PLD 1976 Kar. 268 (8) AIR 1962 Pb. 82 (9) AIR 1923 Mad. 13 (10) AIR 1929 Cal. 475 (11) AIR 1929 Rang. 11 (2) (12) AIR 1924 All. 144 (13) 1980 CLC 781 ' indulgence to the appellants and dismissed the appeal in default instead of adjourning it to another date. 8. Now, I proceed to determine the question whether there is sufficient cause for re-admission of the appeal. Admittedly, there is no explanation on the record for the absence of the appellants. It is incorrect to say that the appeal was filed by the Government. As stated at the outset, the appeal was preferred by the Pakistan Day Memorial Committee, through its Chairman, and another. The Commissioner, Lahore Division, Lahore, is Chairman of the said Committee, which was the first appellant in the appeal. The second appellant was the Superintending Engineer, Provincial Circle, Lahore. He is Secretary of the said Committee. The Commissioner as well as Superintending Engineer are stationed at Lahore. They have also a large number of subordinates available to them in Lahore. It was, therefore, not difficult for them to personally appear before this Court or depute some official to look after the appeal. They, however, failed to do so and, upto this moment, no reason whatsoever is forthcoming for their short coming. In the case of Punjab Province, relied upon by learned counsel for the respondent, an appeal filed by the Provincial Government was dismissed in default and my learned brother Khalil-ur-Rehman Khan, J. Declined to restore it. While dealing with this aspect of the matter that the appeal before him was filed by the Government, it was rightly observed by my learned brother that it "is well-settled that in adjudication of civil matters, Government is not entitled to any preferential treatment as against the ordinary citizens and any negligence in prosecution of the appeal cannot be brushed aside". I am, therefore, unable to ignore the failure of the petitioners to given any reason for their absence. 9. The explanation furnished by learned counsel for the petitioners for his absence is also far from satisfactory. I have already observed that on 8th May, 1984 there was an agreement between learned counsel for the parties that the appeal may be heard on 2nd June, 1984 at 8-30 a. m. And I had ordered accordingly. In view of the commitment made by him, by means of the above agreement, learned counsel for the petitioners should have been present in my court-room on 2nd June, 1984, at 8-30 a. m. If not a little earlier. He, however, did not appear even at 8-30 a. m. Although the appeal was called on several times. The appeal was, therefore, dismissed in default, after waiting for him for a short while. According to him, at about 8-30 a. m. he was present outside the courtroom of Mr. Justice M. Mahboob Ahmed who is also Chairman of the Election Authority. It
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was stated by learned counsel for the petitioners that he had gone to the said court-room for making enquiries as to when the case of Ch. Ijaz Hussain would be taken up by the Election Authority. In the reply submitted by the respondent it was stated that the Election Authority hears cases after 11-00 a. m. It was also added that the said case was taken up by the Election Authority at 12 O'clock and then adjourned to 14th July, 1984. It was not denied by learned counsel for the petitioners that the above case was taken up by the Election Authority after 11-00 a. m. In view of the time specified by me for the hearing of the appeal, learned counsel for the petitioners should not have engaged himself in making enquiries about the timing of the hearing of the said case by the Election Authority, and if it was necessary to do so the said enquiries could be made by his assistant, Khanzada Saif Ullah Khan, Advocate, who was, admittedly, present with him at the relevant time. His clerk could also do that job. And if the enquiries were essentially to be made by learned counsel for the petitioners himself he too could easily do so by 8-25 a. m. Because the High Court starts functioning at 8-00 a. m. My court-room is on the first floor. It is almost just above the court-room of Mr. Justice M. Mahmoob Ahmed which is on the ground floor. Learned counsel for the petitioners could conveniently cover the short distance between the two court-rooms within five minutes. It has not been stated why the said enquiries could not be concluded within 25 minutes for which the Court of Mr. Justice M. Mahboob Ahmed had remained open before the petitioners' appeal was called on by me. It is also noteworthy that learned counsel for the petitioners engaged himself in the said enquiries without the prior permission of, or any intimation to, this Court. None had appeared before me at the appointed time to state that leamed counsel for the petitioners was making the enquiries in question. No cogent reason has been given why Khanzada Saif Ullah Khan, Advocate, had come late to my Court. He was not doing anything before 8-30 a. m. Although, according to the view expressed in the case of Nuzha Bint El-Ha] Stiliman Abu Khadra v. Haji Ibrahim Saleh El-Helou and others (I), the clerk of learned counsel for the petitioners had no official standing yet even he did not turn up before me when the appeal was called on ; and no explanation for his lapse is forthcoming. I, therefore, cannot help reaching the conclusion that not only learned counsel for the petitioners but also his assistant and clerk did not take due care of the appeal in question. 10. As for the cases of Mst. Baigan, Muhammad Shat and 2 others and Muhammad Haleem and others, relied upon by learned counsel for the petitioners, they are distinguishable on facts. In all those cases the default of the counsel was due to his being busy before another Court but this is not true of the case before me inasmuch as learned counsel for the petitioners was not addressing arguments in the case before the Election Authority nor it was being argued by his adversary. In fact, that case had not yet been called on when the petitioners' appeal was taken up by me at the appointed time. At that time, learned counsel for the petitioners was allegedly making enquiries with regard to the probable time of the hearing of the case by the learned Authority. There is no dispute on the point that the said case was eventually taken up by the learned Authority after 11-00 a. m. i. e., after more than two hours of the time fixed for hearing of the appeal. It is not the plea of learned counsel for the petitioners that at 8-30 a. m. He was in conversation with the Chairman or any Member of the learned Authority or was having talk with the Reader or any other official assisting it. Instead, the words "while Hakam Qureshi, Advocate, was present outside the Court of the learned Election Authority" appearing in his explanation gives an indication to the effect that he was making inquiries while standing outside .The court-room of Mr. Justice M. Mahboob Ahmed. In this state of affairs, it cannot be said that learned counsel for the petitioners was busy before E another Court when their appeal was called on by me and dismissed for want of prosecution. 11. There are other factors also which distinguish the instant case from the cited ones. In Mst. Baigan's case although the counsel was not present when his case was dismissed in default yet he remained constantly
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(1) PLD 1948 P C 94 ' vigilent and took steps which spoke of his earnest desire to prosecute the case. This is evident from his submission finding mention in the following passage from the judgment of the Supreme Court : "The main ground taken in the application for restoration was that the clerk of the learned counsel for the respondent appeared in the Court where the appeal was fixed on 7th July, 1980 at 8 o'clock in the morning and informed the reader that the counsel was busy before another Bench of the High Court. The clerk of the counsel, it was further asserted, again appeared in the said Court where the appeal was fixed, at 8-30 a.m. But the case had not by then been taken up. The counsel remained busy before the other Bench. And when he was free from the engagement (in an appeal) he came to the Court where the appeal was pending at 9-30 a.m. But was informed that the same had been dismissed for non-prosecution. It was also specifically asserted that the counsel and his clerk remained vigilant throughout." No such steps were taken by learned counsel for the petitioners in the present case. It may also be pointed out in Mst. Baigan's case the) counsel could not enter appearance due to "an honest mistake in calculating and making estimate regarding timings for appearance before different Benches of the High Court" but in the instant case no calculation wasr involved as the time for hearing of the appeal had been specified by me on the previous date. In the case of Muhammad Shaft and 2 others, the absence of the counsel and that of the appellant was "sufficiently explained" which has not been done in the instant case. Also, in the case of H Muhammad Shaft and 2 others, the opposite counsel had agreed to the restoration of the appeal. In the case of Muhammad Haleem and others, the counsel was busy before the Supreme Court and he had sent a chit to the Sarishtadar of the Court, which dismissed the matter for non-prosecution, "requesting that the matter may not be taken up for hearing as he was still busy before the Supreme Court. This chit was duly delivered to the Sarishtadar but the Court dismissed the matter for non-prosecution." No such chit was sent by learned counsel for the petitioners to my Reader although there is an office order of this Court in this regard. It is office order, dated the 20th November, 1965, which has been reproduced at page 87 of the High Court Practice and Procedure by Mr. Faiz Muhammad Sadiq. It reads as follows : "No adjournment is to be granted on account of engagement in another Court unless counsel is occupied with a case being actually heard in that Court. In the latter case counsel has to send engagement slip under his signature to the second Court giving the particulars of the case with which he is busy and the time he will take before concluding it." 12. In view of the above discussion, the cases of Mst. Baigan, Muhammad Shaft and 2 others and Muhammad Haleem and others, cannot be made use of by learned counsel for the petitioners. 13. ' The case of Manager, Jammu and Kashmir State Property in Pakistan and Seth Shivrattan G. Mohatta and another were relied upon by learned counsel for the petitioners to plead that the petitioners' appeal could be restored even though he (petitioners' counsel) was negligent in. Prosecuting the appeal. It is true that before the case of Zulfiqar cited by learned counsel for the respondent, was decided, it was ruled in some cases, including the case of Seth Shivrattan G. Mohatta and another, that a party should not suffer on account of the carelessness of his counsel but a contrary view was taken by the Supreme Court in the case of Zulfiqar Ali, and that view is still holding the field. . 14. In the case of Seth Shivrattan G. Mohatta and another, apart from the negligence of the counsel there were the following other factors justifying restoration of the suit : ..... The 1st May, 1957 on which date the suit was dismissed in default, had been declared an Eid holiday but the Court remained open because the moon was not sighted on the previous evening. This by itself, constituted a sufficient cause for excusing default in appearance by the plaintiff on
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that day and, in any case, a counsel had put in appearance on their behalf though only to ask for adjournment for filing a power-of-attorney in his name, a request which in view of the fact that Mr. S. A. Rafique, learned counsel of the plaintiff, had in the meantime gone abroad for treatment of his failing eyesight merited to be accepted by the learned Single Judge." ' No such factors are available in the case of in hand. The petitioners cannot, therefore, equate their case with that of Seth Shivrattan G. Mohatta and another. 15. It was in view of the "very special circumstances" of the case of Manager,(Jammu and Kashmir State Property in Pakistan, that the Supreme Court had made departure from the rule laid down by it in the case of ZulfiqarAli. As observed in the case of Haji Ahmed Hassan, relied upon by learned counsel for the respondent, the clarification of the rule by the Supreme Court in the case of Manager, Jammu and Kashmir State Property in Pakistan does not have the effect of reversal of the underlining principle of the above rule". Relevant passage from the judgment in Haji Ahmed Hassan's case reads as under : "It is true, that the trend of recent authority (in line with the ratio in the case of Zulfiqar Ali) is that if a party engages a counsel 'who was lacking in his sense of responsibility to the Court, it is he who should suffer and not the other side'. The clarification of the rule by the Supreme Court in the case of Manager, Jammu and Kashmir State Property in Pakistan does not have the effect of reversal of the underlining principle of the above…
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