BUX ELLAHI Versus SADAAT ALI BAIG

ORDER

1. Heard Mr. Muhammad Aslam Qureshi, learned Advocate for the appellant and Mr. S.Khizar Askar Zaidi, learned Advocate for the respondent.

2. This appeal was dismissed in default on 21‑1‑1991 due to absence of the appellant and his counsel. The learned Advocate for the appellant, however, on 16‑3‑1992 filed this application for restoration of the appeal. The learned Advocate has filed his personal affidavit.

3. It is contended that he could not appear before this Court on 21‑1‑1992 for the reason that the case was not shown in the monthly cause list. On inquiry from the office he was told that since the matter had not been listed in the monthly cause list, the Advocates will be informed about the date of hearing by a separate notice. The notices were issued to the advocates, but in fact no notice was received by him. He not being aware about the date of hearing, could not appear on that date and consequently the appeal was dismissed. It is also explained by the Advocate that he is not a member of the High Court Bar Association and, therefore, he is not supplied the list but he personally checks from the Roster Branch the dates of a few matters in which he is appearing. The above facts are duly supported by the affidavits.

4. The respondent has filed his affidavit in which he has neither denied the fact that the appeal was not listed in the monthly cause list, nor the issuance of the notices to the advocates ." ‑ the aforesaid date of hearing. It is nonetheless stated that the matter had appeared in the daily cause list and no sufficient cause has been shown for non‑appearance on the date of hearing. i: is also stated 'that the, application is barred by time. The learned Advocate for the respondent has contended that the application is not barred by time.

5. It is admitted that the matter was not printed in the monthly list. The diary of the Deputy Registrar (Judicial) shows that on 23‑12‑1991 he ordered issuance of notice for 21‑1‑1992. The record shows that notices for 21‑1‑1992 were issued to the Advocates for the parties. The notice was served on the Advocate for the respondent. The notice issued to the advocate for the appellant was returned unserved by the bailiff. The office due to mistake did not point out the fact that the notice to the advocate for the appellant was returned. unserved. Had it been pointed out the appeal would not have been) dismissed.

6. The appeal was thus dismissed due to mistake on the part of the concerned officer of this Court.

7. The above reason, coupled with the averments made in the personal affidavits of the learned advocate for the appellant establish sufficient cause for his non‑appearance on 21‑1‑1992.

8. With regard to the limitation, the learned advocate for the appellant has relied on the case of Yusuf v. Fazal Karim, reported in 1983 CLC 2219, wherein it has been held that limitation for application for re‑admission or restoration of appeal dismissed in default, Article 168 of the First Schedule to the Limitation Act, 1908 will not be applicable and that residuary Article 181 thereof will be applicable to appeals filed under section 21 of the Sindh Rented Premises Ordinance, 1979. The learned counsel for the respondent did not controvert the above legal aspect with regard to limitation.

9. However, the learned counsel for the respondent has relied on the case of Lal Dino and others v. Deputy Commissioner and others (1982 SCMR 201). Suffice to say that the above authority pertains to limitation prescribed for readmission of appeal under the provisions of Civil Procedure Code and is not applicable to appeals in rent jurisdiction. On merits, the learned counsel has opposed the application relying on the case of Ali Ahmad and others v. The State reported in 1974 SCMR 163. In this case the reason for non appearance was stated to be sudden illness of the advocate on record and the petitioner. The Supreme Court took the view that if they could not appear because of their illness, they could have made alternate arrangement to inform the Court. In the said case the advocate on record and the petitioner were although aware of the date of hearing but failed to take necessary steps to inform the Court about their alleged illness. It is not so in the present case. He then relied on the case of MA. Latif Faruqui v. National Bank of Pakistan reported in PLD 1981 Kar. 649. The ..facts of the aforesaid case are not applicable to the circumstances of the present case, as in the said case, the learned Judges had found that it was either a case of gross negligence or complete lack of interest on the part of one of the two advocates who were appearing for the concerned party. The learned Judges further observed as under:‑

10. "We must here state, the expression `sufficient cause' is not susceptible of an exact definition and no hard and fast rule can be laid down to cover all possible cases. The question has to be decided with reference to particular facts of each case and generally speaking facts are seldom same or identical. Therefore, precedents on such question as one under consideration are not generally of such assistance."

11. The order, dated 21‑1‑1992, therefore, is hereby recalled and the appeal is re‑admitted at its original number for disposal on merits.

12. AA./S‑878/K Appeal restored.