N.-W.F.P. EMPLOYEES' SOCIAL SECURITY INSTITUTION Versus RISING SUN KNIT WEAR LTD.

ORDER

1. MUHAMMAD NAWAZ ABBASI, J. ‑‑‑This appeal under Article 185(2) of the Constitution of Islamic Republic of Pakistan, 1973, has been preferred against the order, dated 21‑9‑1995 and 28‑9‑1995 passed by a learned Judge of Peshawar High Court, through which Appeal No.2 of 1994 filed by the appellant was dismissed for non‑prosecution and the application (C. M. No. 1 of 1995) moved for restoration of the appeal was also dismissed.

2. Order, dated 21‑9‑1995 passed in C.C. No.7 of 1989 reads as under:‑‑

2. "The Official Liquidator is to distribute the remaining sum of money amongst the creditors. Adjourned to 28‑9‑1995.

3. Appeals Nos.2, 3 and 4 of 1994 .

4. Present: Nemo for the Appellant.

5. Dismissed for non‑prosecution. "

6. Learned counsel for the appellant has contended that the non?representation of the appellant in the appeal before the High Court on the date when it was dismissed for non‑prosecution was not intentional rather the appellant remained under the impression that on submission of report by the Liquidator, notice would be given to the appellant for fixation of appeal but the appeal was fixed without such notice. The learned counsel submitted that since the claim of the appellant was not satisfied in full, therefore, the appeal was necessarily required to be disposed of on merits as the appellant, being one of the creditors of the Company under liquidation, was paid only an amount of Rs.23,892. The Liquidator having satisfied the preferential claims submitted the report of the learned Judge in the High Court in the light of the said report, passed order accordingly on 22‑9‑1995. The learned Judge vide order of even date in C.M. No. l of 1995 moved by the appellant for restoration of the Appeal bearing No.2 of 1994, which was dismissed for non‑prosecution on 21‑9‑1995, passed the following order:‑

7. "This is an application by N.‑W.F.P. Employees' Social, Security Institution for restoration of the Appeal No.2 of 1994, dismissed for non‑prosecution on 21‑9‑1995. This application will serve no useful purpose in view of the order passed in C.C. No.7 of 1989. The Institution has been paid Rs.23,892 and no further sum of money is left with the Official Liquidator. The application is, therefore, dismissed. "

8. We have heard the learned counsel for the appellant and considered explanation offered on behalf of the appellant for non‑appearance on 21‑9‑1995, when appeal was dismissed for non‑prosecution. The explanation of the appellant that non‑representation was bona fide and was not intentional, appears to be reasonable and correct. , A

9. The respondent despite notice, is not in attendance, and proceeded ex parte. We, being satisfied with the explanation offered by the appellant for non‑appearance on the date of hearing of appeal by the High Court, set aside the impugned orders dated 21‑9‑1995 and 28‑9‑1995 of the Peshawar High Court and allow this appeal with direction for disposal of the appeal of the appellant by the Peshawar High Court on merits. There will be no order as to costs.

10. Q.M.H./M.A.K./N‑50/S ????????????????????????????????????????????????????????????????????? Appeal allowed.