TUFAIL HUSSAIN Versus NAFEES FATIMA

1. I have heard Mr. Anwar Hasan Pasha, learned counsel for the appellants and Mr. Jamil Raza Zaidi, learned counsel for the respondent. The IInd Additional District Judge (West) Karachi dismissed the appeal preferred by the present appellants in the absence of the learned counsel for the appellants; when the appellants became aware of the fact that their appeal had been disposed of in the absence of their counsel they moved an application in the Court to re‑call the order dismissing their appeal and permit them to participate in the hearing of the appeal. The appellants' father stated that appellant No.3 was ill. This application was rejected by the Court below on the ground that no medical certificate of Ghulam Ali was annexed to the application and since the inception of appeal the appellants did not appear in the Court. The disturbing feature of the case is that under present legal system where the parties generally appeals through their Advocates, the obligation of the parties is to select their/his Advocates, brief him, pay him the fees demanded by him then trust the learned Advocate to do the rest of the things. After engaging a lawyer, the parties may remain supremely confident that the lawyer will look to their/his interest. At the time of the hearing of appeal, the personal appearance of the party is not only not required but is hardly useful. Therefore, the party having done every thing in his power to effectively participate in the proceedings can rest assure that he has neither to go to the District Court to inquire as to what is happening in the District Court with regard to his appeal nor is he to act as a watch‑dog of the Advocate that the latter appears in the matter when it is E fixed. It is no part of his job. What is the fault of the party who having done every thing in his power and expected of him would suffer because of the default of his Advocate. If I reject this appeal, as Mr. Zaidi invited me to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. I have already held that the appellants would suffer. The appellants produced the medical certificate in this Court. A bare perusal of it would show that he had an attack of malaria fever on 10‑2‑1987. Therefore, I allow this appeal, set aside the order of the Additional District Judge both dismissing the appeal and refusing to re‑call that order. I direct that the appeal be restored to its original number in the Court of IInd Additional District Judge (West) Karachi and be disposed of according to law. The parties are directed to appear before the IInd Additional District Judge (West) Karachi on 21‑5‑1988. No separate notice will be issued to them in this regard. I direct the learned Additional District Judge to dispose of the same within three months from 21‑5‑1988.

2. M.Z.S./T‑43/K Appeal restored.