MUHAMMAD ALI Versus GENERAL TYRE G RUBBER CO. OF PAKISTAN LTD

1. In 1966, the appellants had filed a civil suit under the Fatal Accidents Act. The suit was decreed on 30‑4‑1974 in the sum of Rs.18,000 wits: interest from date of decree. Respondents Nos. 1 and 3 preferred an appeal against the decree of the learned Civil Judge and the appellants also preferred an appeal in respect of that part of the claim which was not allowed. These two appeals were dismissed for default on 18‑12‑1978. Both the parties filed applications under Order 41, Rule 19, C.P. C. for re‑admission of their respective appeals. The application under Order 41, Rule 19 was filed by the appellants before the learned Appellate Court on 21‑12‑1978 i.e. three days after the dismissal of appeal in default. Mr. A. Rauf, learned counsel for respondent No.3, who was appearing for all the respondents in first appeal, endorsed his no‑objection on the application for re admission of the appeal. Mr. Nasir Ali, learned counsel for the appellants, also endorsed his no‑objection on the application for re‑admission of the other appeal filed by the respondents. However, by order dated 28‑2‑1979, both the said applications were dismissed. The respondents have not filed any appeal against the order dated 28‑2‑1979 of the learned VIIth Addl. District Judge, but the appellants have filed the present Misc. Appeal No. 29 of 1979. I have heard Mr. Nisar Ali, learned counsel for the appellants and Mr. A Rauf, learned counsel for respondent No.3. Respondents Nos.l and 2 have been called absent.

2. It is submitted by Mr. Nisar Ali, learned counsel for appellants that the two appeals were in the first instance pending in the Court of VIth Addl. District Judge and arguments were heard by the Appellate Court in April, 1976, and then the orders were reserved and the appeals were fixed for announcement of judgment on 30‑4‑1976 but the judgment was not pronounced by the learned VIth Addl. District Judge, Karachi, for several months. Alongwith the memo. of the present appeal, the learned counsel for the appellants has filed certified copies of the diary‑sheets of both the appeals pending before the first Appellate Authority. Thereafter, the two appeals were transferred to the Court of VIIth Addl. District Judge, Karachi, and these were dismissed for non‑prosecution by order dated 18‑12‑1978. As observed earlier, an application under Order 41, Rule 19, C.P.C. was filed by the appellants three' days after the dismissal of the appeal i.e. on 21‑12‑1978 Mr. Nisar Ali, learned counsel for the appellants, who was also appearing for the appellants before the First Appellate Court filed his personal affidavit in respect of the said application and this affidavit is reproduced hereinbelow:‑

(1) That I am the counsel for appellants in this matter and as such I am conversant with the facts thereof.

(2) That this appeal was fixed for hearing on 18‑12‑1978, when this Hon'ble Court was pleased to dismiss it in default and for non‑prosecution.

(3) That on 18‑2‑1978 I attended this Hon'ble Court firstly at 9‑30 a.m. when this appeal was not called out, I again attended this appeal at. about 10‑30 a.m. when I was informed that it was dismissed for non‑prosecution.

(4) That there was no deliberate or wilful absence on my part on 18‑12‑1979 when this appeal was called out before this Hon'ble Court. The appellants are presently residing. in District Thatta (Sind) and, therefore, could not attend this Hon'ble Court.

(5) That this appeal was already heard on merits by the Court of learned VIth Additional District Judge, Karachi, in the year 1976, but the judgment was not delivered for several months, and as such this appeal could not legally be dismissed for non‑prosecution.

(6) That what is stated herein above is true to my own knowledge and belief."

2. I also found from the record that Mr. A. Rauf, Advocate, who was appearing for all the respondent, had endorsed his no objection to the grant of the said application on the application itself. However, the learned VIIth Addl. District Judge, by his order dated 28.2‑1979 dismissed the application holding that no ground had been made out.

3. Before me also, Mr. A. Rauf, learned counsel for respondents No.3, states that he had endorsed on the application that he had no objection to the grant of the said application and makes the same statement in Court today. I have perused the diary‑sheet and also the pleadings including the affidavit of Mr. Nisar Ali, learned counsel for the appellants, which has been reproduced above. In my view, sufficient cause had been made out for re‑admission of the appeal. On the facts and in the circumstances of the case, which are apparent from the record and also from the affidavit of the learned counsel for the appellants, the learned VIIth Addl. District Judge, Karachi, should have allowed the application for re‑admission of the appeal.

4. Miscellaneous Appeal No. 29 of 1979 is allowed and the order dated 28‑2‑1979 of the learned VIIth Addl. District Judge, Karachi, is set aside to the extent .it related to the dismissal of the application under Order 41, Rule 19, C.P.C filed by the appellants. The said application stands granted. Civil Appeal No. 190 of 1974 filed by the appellants stands restored.

5. 3.This matter arises out of a fatal accident case. The accident had taken place in 1965. It is directed that the learned First Appellate Authority will decide the appeal within three months from the receipt of the copy of this order.

6. There will be no order ,as to costs.

7. H.B.T./M‑374/K Appeal restored