Messrs TEXZONE vs THE ADDITIONAL COLLECTOR OF CUSTOMS, EXPORT
This matter arises from applications submitted for the restoration of an appeal that was dismissed for non-prosecution, along with a request for the condonation of a delay of 12 days under Section 5 of the Limitation Act 1908. The core legal question concerns whether the failure of the appellant's counsel to appear due to lack of an individual intimation notice—despite his name appearing in the cause list—constitutes sufficient cause for condoning delay and restoring the dismissed appeal. The Sindh High Court held that the printing of an advocate's name in the cause list serves as sufficient notice, and an advocate has a professional duty to inspect the cause list. As no satisfactory explanation was provided for the absence on two consecutive dates of hearing, the court dismissed both the application for condonation of delay and the application for restoration of the appeal. The key principle laid down is that publication in the cause list is constructive notice to counsel, and absence based on a lack of separate intimation is not a sufficient ground for condoning delay.
- Whether the publication of an advocate's name in the cause list constitutes sufficient notice of hearing?
- Does the absence of a separate intimation notice to an advocate constitute sufficient cause for condoning delay under Section 5 of the Limitation Act 1908?
- Can an appeal dismissed for non-prosecution be restored when the appellant and counsel repeatedly fail to appear without a tenable explanation?
- Section 5, Limitation Act 1908
ORDER
1. MUHAMMAD MUJEEBULLAH SIDDIQUI, J.--- 1 and 2. Heard learned Advocates for the parties. The appeal was fixed for Katcha Peshi on 22-8-2005. Nobody was present on behalf of the appellant.
2. However, taking a lenient view the appeal was not dismissed for non-prosecution and the notice was directed to be issued to the respondents. On 12-12-2005, again nobody was present on behalf of the appellant and Mr. Raja M. Iqbal, Advocate for the respondents was present. The matter was kept aside up to 1-25 p.m., but no intimation was received with the result that the appeal was dismissed for non-prosecution. The above applications have been submitted praying for restoration of the appeal and condonation of delay of 12 days under section 5 of the Limitation Act.
3. Mr. Muhammad Aleem Khan, learned counsel for the appellant has submitted that although his name was printed in the cause list but he could not appear, as no intimation notice was issued to him and he had gone to Hyderabad, therefore, he could not see the cause list.
4. Mr. Raja M. Iqbal has opposed the condonation of delay and restoration of appeal on the ground that on the first date of hearing i,e, 22-8-2005, nobody was present without any intimation and likewise on second date i,e, 12-12-2005 again nobody was present on behalf of appellant and reason for delay of condonation is not tenable.
5. I am persuaded to agree with the submission of Mr. Raja M. Iqbal, Advocate. The printing of the name of Advocate of parties in the cause list is sufficient notice and it is the duty of Advocates to go through the cause list. No further notice is required to be issued and no sufficient explanation has been given for non-appearing on two dates of hearing when the matter was fixed for Katcha Peshi.
6. No case has been made out either for condonation of delay or for restoration of the appeal, and consequently both the applications stand dismissed.