SHAUKAT HUSSAIN Versus QAISARAH BEGUM

ORDER

1. NASIM HASAN SHAH, J.- -A regular second appeal was file in the Lahore High Court by the petitioners. It was fixed for hearing in motion for 6-4-1987 and the case duly appeared in the motion cause list for 6-4-1987. However, the learned counsel did not appeal on that date and it was dismissed for non-prosecution, at 12-1 p.m., after waiting for him.

2. On 16-4-1987, the learned counsel submitted an application for restoration wherein it was stated that the clerk had omitted to nod the case by oversight and, therefore, the learned counsel being unaware of the fixation of the case could not appear and was not aware about its dismissal. The clerk of the learned counsel learnt about this fact by chance when he went into the Court of the learned Judge a few days later to enquire about another case. As soon as the learned counsel became aware of this fact he submitted an application for restoration accompanied by an affidavit of the clerk. This application came up for hearing on 3-5-1987 but was dismissed with the observations that--

3. "A mere assertion about inadvertence of the clerk of the learned counsel is not acceptable as a sufficient cause for re-admission of the appeal."

4. The learned Judge further observed--

5. "More. particularly so, when the discovery about the dismissal in default is stated to have been made soon thereafter."

6. This petition for leave to appeal has been filed against the last- mentioned order.

7. A notice was issued to the respondents for today and Mr. Aivaz Ali, Special Attorney, is present in person.

8. The learned counsel for the petitioners has submitted before us that the clerk had inadvertently omitted to note the case which was notified in the cause list of motion cases but that as soon as this lapse was discovered an application accompanied by the affidavit of the clerk was filed for restoration; that the case was still in motion and no prejudice had been caused to the other side and further that the view expressed by the learned Judge in the High Court that a mere assertion about the inadvertence of the clerk of the learned counsel was not acceptable was not a proper exercise of the discretion, in the circumstances of this case. It is submitted that the learned counsel for the petitioners has been in practice for 32 years there had never been any such lapse before nor the clerk was guilty of such an omission before. The observation that "more particularly so, when the discovery about the dismissal in default is stated to have been made soon thereafter" is somewhat incompre hensible. The application for restoration was filed within 10 days as soon as the lapse was discovered.

9. The attorney of the respondents has also been heard.

10. We note that this was not a case of deliberate or wilful attempt to avoid professional responsibilities and cannot be attributed to the negligence or carelessness of the learned counsel or his clerk. In somewhat similar circumstances this Court condoned such a lapse in Dhanjisha Behramji Ghadially v. Abdul Latif Khan 1983 S C M R 1003. It has also been held in Salamat Bibi and others v. Settlement and Rehabilitation Commissioner, Multan P L D 1966 S C 467 that--

11. "The determination of the question as to whether there is or is not a 'sufficient cause' in a particular case is no doubt a matter within the discretion of the Court itself, but it has to be remembered that this discretion took like all other discretions exercised by a Court, must be exercised in a judicious manner having regard to all the facts and circumstances of each case and that a litigant should not be lightly deprived of the right of having his case heard by the Court."

12. We are of the opinion that this is not a case of carelessness or negligence or, the part of the counsel or his clerk. Nor is there any circumstance showing that they were not vigilant about their professional responsibilities.

13. The further fact, that the case was still in motion and the application for restoration was made within only 10 days of the dismissal of the appeal for non-prosecution are all circumstances showing that this was a fit case for restoration.

14. We would, therefore, convert this petition into an appeal an allow it. The order of dismissal of the case for non-prosecution dated 6-4-1987 as also the order refusing to restore the case on 3-5-198 are Set aside. The appeal (R.S.A. No. 25 of 1967) shall be re-admitted on its old number and shall be disposed of by the High Court, in accordance with law.

15. Not costs.

16. S.Q./S-83/S Appeal allowed.