GOVERNMENT OF PAKISTAN Versus ZAIN KHAN

M. S. H. QURAISHI, J.‑ This appeal by leave of the Court is directed against the order dated 10‑6‑1979 of the Peshawar High Court (Circuit Abbottabad) refusing to restore the appellant's application ‑ for restoration of their R. F. A. No. 74 of 1977 which application had been dismissed earlier on‑6‑5‑1979 in default for non‑appearance.

2. The matter arises out of a reference made at the instance of the respondents against the award of the Collector in a land acquisition case. In the reference, the Land Acquisition Collector appellant No. 2), who was the only respondent, was held ex parte on 21‑1‑1977. An application moved by appellant No. 1 for impleadment was dismissed on 16‑3‑1977 and on the same date an ex parte decree was made which had the effect of enhancing the compensation from Rs. 4,00,000 to Rs. 12,00,000. The appellants then filed the said Regular First Appeal which was admitted to full hearing subject to all just exceptions on 9‑10‑1977. When the appeal came up for hearing on 18‑3‑1979, the appellants' counsel was not present and one Muhammad Yaqub who appeared on their behalf, was not possessed of any power of attorney or letter of authority from the appellants, with the result that the appeal was dismissed for non‑prosecution. An application C. M. 39 of 1979 was moved on 24‑3‑1979 for restoration of the appeal, and although it was fixed, at the instance of the appellants' counsel himself for hearing on 6‑5‑1979, none appeared on behalf of the appellants on that date, with the result that the application was dismissed in default. Another application C. M. 80 of 1979 was moved for restoration of C. M. 39 of 1979, with an alternative prayer to review the order dismissing the appeal. The learned Judges noted that 6‑5‑1979 had been fixed at the very request of the appellants' counsel and yet ' he had failed to appear and observing that the default in appearance having been made twice, rejected the application by the impugned order, dated 10‑6‑1979.

3. Leave was granted to consider the contentions that (1) the initial order of the High Court dated 18‑3‑1979 dismissing the appeal was illegal as one Muhammad Yaqub "an authorized representative" of the Government was present in Court, (2) the appeal in the High Court being governed by Order XLI, rule 17 and not Order IX, rule 8, C. P. C., the dismissal of the appeal without applying mind to all the facts of the case was not a proper exercise of discretion and (3) the decree passed by the Senior Civil Judge was without jurisdiction as the date on which it was passes was fixed for hearing of the application of appellant No. 1 and not for disposal of the reference.

4. It has been argued before us that as the decree of the civil Court suffered from a patent illegality inasmuch as the date'‑on which it was made was fixed only for hearing of the miscellaneous application and not for decision of the suit, the High Court, under Order XLI, rule 17, C. P. C., ought not to have exercised the discretion against the appellants. In this connection, it was submitted that the order, dated 18‑3‑1979 dismissing the appeal showed that it had been made mechanically, perhaps under the belief that dismissal of the appeal was the only consequence of non‑appearance. In this connection support was sought from Manager, Jammu & Kashmir State Property v. Khuda Yar (P L D 1975 S C 678). But this case can be easily distinguished because there the dismissal bad been ordered without ascertaining whether the party had been served and in that context it had been held that such order of dismissal was void and a nullity. There is no question of want of service in the instant case. The counsel was aware that the appeal was fixed for hearing on 18‑3‑1979 and his only excuse was that as he was engaged at Peshawar he could not reach in time. As for Muhammad Yaqub, nothing has been shown from the record to justify that he had the authority from the Appellants to appear and act on their behalf. In any case, no plea that he had the capacity to represent the appellants had been taken in the restoration Application No. 39 of 1979. What is worse is that on 6‑5‑1979 which was the date fixed at the instance of counsel himself for hearing of that application, he again defaulted in appearance. The subsequent Application No. 80 of 1979 was moved on the ground that the counsel had failed to inform the appellants and as such the non‑appearance was not intentional. It had also been urged in that application that the case involved large amount of public money. But the contentions did not prevail.

5. The Court has the discretion under Order XLI, rule 17, C. P. C. to dismiss an appeal in the case of non‑appearance on the part of the appellant. The power of the Court under Order XLI, rule 17 is plenary and it is not bound to adjourn the case where the appellant neglects to put it appearance. It is hardly open to an appellant to question the property of the exercise of the discretion against him who or his counsel had been grossly negligent in prosecuting the appeal. Tote appellants having known of the conduct of their counsel in not appearing on 18‑3‑1979 ought to have exercised better vigilance and taken every possible care to be present on 6‑5‑1979 when the application for restoration of the appeal had come up for hearing. The mere assertion that they had not been informed of the date of their counsel was not sufficient to absolve them of their responsibility. Seen in the context of the view taken by this Court in Zulfiqar Ali v. Lal Din (1974 S C M R 162) and Rafiq Ahmad v. Abdul Haleem (1982 S C M R 1229) we do not find any sufficient reason to hold that the exercise of the discretion by the High Court suffered from an illegality such as to warrant an interference by this Court. The appeal, therefore, fails and is accordingly dismissed though we make no order as the costs.

S. Q. Appeal dismissed.