MUHAMMAD SIDDIQUE Versus HAMEEDULLAH
SAJJAD ALI SHAH, J. ‑‑‑This appeal with leave of the Court is directed against order dated 22‑12‑1986 passed by Lahore High Court, Lahore, whereby F.A.O. No.178 of 1984 is dismissed in limine. Appellants before us were appellants in the District Court and their appeal was dismissed for non -prosecution by Additional District Judge, Sialkot. Application under Order XLI, Rule 19, C.P.C. was filed which was dismissed for non‑prosecution on 20‑2‑1984. Application for restoration of application was filed, which was dismissed vide order dated 3‑7‑1984 and this order was impugned in appeal before the High Court, which is dismissed as stated above.
2. Leave is granted by this Court to examine the contention of appellants before us that they were unaware that their application for restoration was transferred to another Court and further the transferee Court did not give notice of hearing and on that account order of dismissal of their application for non‑prosecution was unjustified.
3. In the memo of appeal filed in the High Court, it is stated that their appeal was transferred to the Court of Mr. Saleem Akhtar Khan, A.DJ. and was dismissed for non‑prosecution on 26‑2‑1983. Application for restoration was filed and during pendency of that application the case was transferred to the Court of A.D.J. Rai Muhammad Zafar Bhatti, who dismissed the said application for non‑prosecution on 20‑2‑1984. It is contended on behalf of the appellants that they were unaware about the transfer and transferee Court did not issue notice of hearing. It appears from the order of A.D.J. dated 3‑7‑1984 that restoration application was dismissed on 20‑2‑1984 and date earlier than that was 3‑12‑1983 on which date the appeal was transferred to the Court of A.D.J. Rai Muhammad Zafar Bhatti and on that day Mr. Abdul Rehman Ghazi, Advocate was present on behalf of the appellants and hearing was adjourned to 20‑2‑..1984 for arguments. On the adjourned date nobody appeared for appellants, hence dismissal for non‑prosecution of application was legal and proper as Advocate of the appellants had knowledge of the date of hearing. Once counsel attended, question of non‑issue of notice by transferee Court becomes redundant.
4. In the High Court contention was raised on behalf of the appellants that Mr. Abdul Rehman Ghazi Advocate, who appeared before learned A.D.J. cm 3‑12‑1983 was not their Advocate and was not authorised to appear on their behalf. Advocates who were authorised to appear on behalf of the appellants were Ch. Mushtaq Ahmad and Rana Nasrullah Khan. In that context joint affidavit was filed by all the three Advocates named above in which Messrs Mushtaq Ahmed and Rana Nasrullah Khan stated that they did not authorise Mr. Abdul Rehman Ghazi to appear on their behalf before A.D.J. Sialkot in this case on 3‑12‑1983 and further they did not get any notice of hearing from the transferee Court. This affidavit is signed by all the three Advocates named above as deponents. It is attested by Oath Commissioner.
5. High Court declined to accept the affidavit on the ground that from three deponents only Ch. Mushtaq Ahmed Khan, Advocate appeared before the Oath Commissioner as per verification and other two deponents signed the same without appearing before the Oath. Commissioner and in the circumstances affidavit did not fulfil the requirements contemplated for it. Learned counsel for the respondents appearing before us also criticised this affidavit on the ground that its authenticity was doubtful and it is not drawn up according to legal requirements, hence not fit to be relied upon. We have seen this affidavit in the record of the High Court which was sent for by us. It is correct that in this affidavit Mr. Abdul Rehman Ghazi does not say specifically in first singular that he did not appear on behalf of appellants before A.D.J. on that day but the other two deponents have made categorical assertion that they were Advocates of appellants and had not authorised Mr. Abdul Rehman Ghazi, to appear on their behalf before the Court on that day and MrAbdul Rehman Ghazi after reading the contents has signed this statement and his signature, which is not disputed, clearly shows that he knew what was being stated to the effect that he appeared but not on behalf of the appellants and was not authorised by the Advocates of the appellants to do so and consequently appearance of his name in the case diary of this case before learned A.D.J. was due to some confusion. If this affidavit is not accepted as affidavit on behalf of Mr. Abdul Rehman Ghazi because it does not fulfil the requirements, then it can be treated as a writing signed by him containing admission of facts mentioned therein. Learned counsel for the respondents also submitted that no further enquiry can be made from Mr. Abdul Rehman Ghazi for the reason that he is now settled in U.S.A. Even if this affidavit is not treated as affidavit sworn by Mr. Abdul Rehman Ghazi, we treat it as writing duly signed by him containing his admission to that effect. We accept his admission that he appeared unauthorisedly on that day and his presence was noted in that case due to confusion. In such circumstances it can be said that Mr. Mushtaq Ahmed, Advocate, who has sworn the affidavit before the Oath Commissioner as per verification has stated on oath that notice was not received by them by the transferee Court and this statement cannot be brushed aside in the absence of positive rebuttal.
6. For facts and reasons stated above, we set aside order of the High Court and that of learned A.D.J. in this context and remand the case to learned A.D.J. for disposal of application for restoration of application filed on 27‑2‑1984. according to law and merits. In the result appeal is allowed with no order as to costs.
A.A./M‑1707/S Case remanded.