SHABIR AHMED BHURGRI and others vs MUHAMMAD HUSSAIN and others
This matter arises from a petition seeking to challenge an order of the High Court of Sindh, whereby a civil petition was dismissed as not pressed after being argued at some length by the petitioner's counsel, and a subsequent application for the recall of that order was also dismissed. The core legal question concerns whether an order dismissing a petition as not pressed upon a conscious statement made by counsel after arguing the case can be recalled or set aside on the ground of mistake. The Supreme Court held that the statement made by the counsel was conscious and deliberate after arguing the merits, and it cannot be equated with a mistake or unauthorized withdrawal of proceedings. The petition was accordingly dismissed. The key principle laid down is that a deliberate statement made by a counsel not to press a matter after arguing it on merits binds the client and cannot be subsequently recalled in the absence of a genuine procedural mistake.
- Whether an order dismissing a petition as not pressed after arguments can be recalled?
- Does a statement made consciously by a counsel not to press a petition bind the petitioner?
- Can a deliberate statement by counsel during proceedings be equated with a procedural mistake?
ORDER
' ZIA PERWEZ, J.---Mr. Anwar Hussain, 'learned Advocate Supreme Court for the petitioners has referred to the order dated 25-2-2009 whereby Civil Petition No, D-54 of 2006 was dismissed by learned Division Bench of the High Court of Sindh when Mr. Sundardas learned counsel for petitioner, after arguing the matter at some length made a statement that he would not like to press the petition and on the statement said petition was dismissed along with listed application.
From the available record it appears that on the subsequent date when the application M.A. No, 873 of 2009 came up for hearing before another Bench of the High Court, Mr. Sundardas learned counsel was also present in the Court. He confirmed that he had informed the petitioner that the petition was dismissed as not pressed and after considering the fact learned Bench also dismissed the application for restoration/ recall of order.
2. Today it has been contended by Mr. Anwar Hussain, learned Advocate Supreme Court that ends of natural justice demand that mistake may be rectified and parties may not be made to suffer on the consequence of mistake he has also placed reliance on the case of Sh. Bashir Ahmed v.
Muddassar Hayat and others (2005 SCM R 1120). Where, while dismissing the petition with such circumstances question of authority and power of the learned counsel to withdraw the case was considered by Bench of this Court. The present petition does not pertain to withdrawal of proceedings from the Court in fact the case was argued at some length before the statement was made by learned counsel. On being asked Mr. Anwar Hussain, learned counsel is not in a position to produce any precedent calling for interference where during the course of argument the learned counsel does not press any point or the case which is common practice when no case is made out on merits. Learned counsel has also not been able to point out any mistake in the proceedings which cannot be equated with the statement made consciously and deliberately by the learned Advocate before the Bench of the High Court.
3. For the foregoing reasons, we do not find any merit in this petition which is dismissed.