BEGUM HAFEEZ FAZAL KARIM Versus KANIZ FATIMA

This appeal is directed against the order dated 15‑2‑1981 of the learned Additional District Judge, Lahore whereby he dismissed application filed by the appellant seeking restoration of her appeal earlier dismissed in default on " 23‑9‑1980.

2. Learned counsel for the appellant contended that the appellant a `parda' observing lady was out of Lahore and had gone to Karachi on the relevant date. The counsel appearing on her behalf omitted to note down the date of hearing viz 23‑9‑1980 in his diary. He also could not appear on the date fixed for submission of written arguments in the appeal. Learned counsel stated that the appellant had submitted affidavit in support of the application filed by her on 13‑10‑1980 seeking restoration of the appeal. The application was, however, signed by Mr. Arshad Mahmood, Advocate for the appellant who omitted to note down the date viz. 23‑9‑1980 fixed in appeal in his diary: It was submitted that the application was dismissed without providing the appellant opportunity to prove that the appellant and her counsel for bona fide reason could not appear on 23‑9‑1980 in Court. It was also stated that in any case 23‑9‑1980 was not a date of hearing because the parties had already argued tile matter and only written arguments were required to be submitted on that date as such the appeal could not have been dismissed in default on that date.

3. Learned counsel for respondent No. 1 opposed this appeal and stated that the learned counsel for the appellant noted 23‑9‑1980 on the file cover of his brief. He did not file affidavit in support of the application. There was, therefore, no justification to restore the appeal. The learned lower appellate Court rightly dismissed her application seeking restoration of appeal,

4. I have heard learned counsel for the parties and have gone through the record. The application for restoration of appeal was supported by affidavit of the appellant and the application was signed by the counsel who did not appear on 23‑9‑1980. The appellant being `Pardanashin' lady and out of station could not appear in Court on the relevant date. The averments made in the written reply to the application were not supported by affidavit of the respondent, therefore, it cannot be said that the learned counsel for the appellant noted 23‑9‑1980, the date fixed in the appeal. The learned lower appellate Court in these circumstances was not justified to reject the application for restoration summarily because law favours adjudication of disputes on merits.

5. In this view of the matter the impugned order passed by the learned lower appellate Court is set aside, application for restoration of the appeal is a allowed subject to payment of Rs. 100 as costs and the parties are directed to appear before the learned lower appellate Court on 28‑11‑1983 on which date the learned Court shall hear the arguments and decide the appeal.

There will be no order as to costs. This also disposes of CM. No. 734‑C of 1981.

M.Y.H./3027/L

Appeal allowed.