MUHAMMAD KHAN AND 3 Others vs ABDUL MAJID AND 2 Other
This appeal by special leave is directed against an order of the High Court dated 14th December, 1977, which dismissed an application to recall an earlier ex parte order vacating a status quo order obtained by the appellants. The appellants sought the recall on the ground that the ex parte vacation order was obtained through misrepresentation and that their counsel had missed the previous hearing due to a genuine illness involving an eyesore. The High Court's order failed to make any mention of this illness. The Supreme Court of Pakistan held that this omission constituted an error apparent on the face of the record, requiring the matter to be remanded to the High Court. The appeal was accordingly accepted, and the case remanded to the High Court for a fresh disposal after considering the counsel's illness.
- What is the effect of the High Court failing to notice the genuine illness of a counsel when considering an application to recall an ex parte order?
- Does an omission of a material fact like counsel's illness on the face of the High Court order warrant a remand of the case for fresh disposal?
1. KARAM LLAHEE CHAUHAN, J.--This is an appeal by special leave against an order of the High Court dated 14th December, 1977, whereby a Civil Miscellaneous Application No. C.M. 5250/77 (in R. S. A.
2. No. 463/74) which appeal is still pending in the High Court-was dismissed. This said application was filed to recall an earlier ex parte order of the High Court dated 4th Decem--ber, 1977, whereby an order of status quo obtained by the appellants was vacat--ed. The case of the appellants was that the said order had been got vacated by the respondents ex parte on misrepresenting certain facts before the Court.
3. When the case was taken up on 14th December 1977, it was pleaded that the counsel had missed to notice the previous date namely 4th December 1977 because he could not see the cause list due to an eyesore and had asked his clerk to check up the same but he too inadvertently missed to notice it. The Court did not accept this explanation and refused to recall the order dated 4th December 1977.
4. 2: Leave in this case was granted on 18th December 1977 to consider as to what was the effect of the High Court in not noticing the genuine illness of the eyesore of the learned counsel concerned.
5. We have gone through the order of the High Court. It makes no mention of the illness aforesaid.
6. This A omission is apparent on the face of the record, with the result that the case shall have to be remanded to the High Court for fresh disposal of the mattes after keeping the said illness in view.
3. The result is that the appeal is accepted and the case is remanded as stated hereinbefore. There shall be no order as to costs.