MEHMOOD HUSSAIN ADVOCATE Versus ALLOTMENT COMMITTEE MDA MIRPUR
MOHAMMAD SHERAZ KAYANI, J.--- This is an application for restoration of writ petition which was dismissed by this Court for want of prosecution on 28.02.2013. It has been stated in the application that the original writ petition was sub-judice at Circuit Bench, Mirpur and the applicants had been prosecuting the case vigilantly, however, the same was transferred to headquarter on the application of respondents, without effecting service upon the petitioners and obtaining their objections, and thus, the applicants remained unaware of the fact and also remained searching the file at the relevant circuit. It has been claimed through a letter of the Registrar High Court dated 30.06.2014, the applicants got knowledge of the fact that the petition was transmitted to headquarter, which has been dismissed for want of prosecution vide order 28.02.2013 and instant the application for restoration has been filed on 09.07.2014, promptly after obtaining knowledge of the original writ petition.
2. The respondents have filed objections stating therein that the original petition was sub-judice at Circuit Mirpur which stood transferred to principle seat vide order dated 02.03.2012 on the application of the respondents and the petitioners were well aware of the fact and they have also filed an application for transfer for return of the petition to the relevant circuit through Muhammad Riaz Inqalabi Advocate on 08.09.2012, therefore, it cannot be said that the petitioner were not aware of the transfer of the case to headquarter. It has been stated that the applicant petitioners after filing application for return of the file on 08.09.2012, did not bother to appear before the Court and the petition stood vide order dated 28.03.2013 and the instant application being, hopelessly time barred, also merits dismissal.
3. Mr. Muhammad Riaz Inqalabi, Advocate, has filed written arguments wherein, besides reiterating the facts of the case, he has contended that the case was being heard at Circuit Mirpur and the parties are also residents of Mirpur, therefore, there was no justification for transfer of the case to headquarter, that too, without hearing the applicants, therefore, the order of transfer of the case and all the subsequent orders are mala fide and illegal. The learned counsel has claimed that the applicants could not obtain the knowledge well within time and thus could also not file the application for restoration within the prescribed period of limitation.
4. Mr. Bilquees Rasheed, Advocate, the learned counsel for the respondents negated the claim of the applicants and contended that despite having knowledge of the transfer of the case to headquarter and filing the application for return of the file to the relevant circuit the applicants cannot claim that they were not in the knowledge of the transfer of the case. The learned counsel contended that the application is clearly time barred and no plausible and sufficient cause for delay has been incorporated in the application and restoration of the petition will tantamount to open the doors of an indefinite litigation, therefore, the application may be dismissed.
5. I have perused the written arguments of the applicants and heard the arguments of the learned counsel for the respondents and gone through the record carefully.
6. The sole claim of the applicants is that the original petition was transferred to the headquarter without hearing the petitioners and the petitioners have been condemned unheard.
7. It is also claim of the applicants that the transfer order and the other subsequent orders are illegal, arbitrary, mala fide and biased. In this regard it may be stated that if the petitioners were aggrieved from any order they should have challenged the same before the proper forum well within time and after attaining finality they are not competent to question or comment on any order.
8. As far the plea of the applicants regarding knowledge is concerned, a perusal of the original file reveals that Mr. Muhammad Riaz Inqalabi, advocate for applicants was present before this Court at headquarter on 13.09.2012, when this Court entertained the application filed by him for return of the case to Mirpur Circuit. The other interim orders, of the file also reveal that the learned counsel for the applicants has been appearing before the Court, therefore, it can never be said that the applicants were not in the knowledge of the transfer order, hence this argument of the applicants, being baseless is hereby repelled.
9. The order, impugned herein, was passed by the this Court on 28.03.2013 which has been challenged through the instant application on 09.07.2014, which is definitely barred by more than one year, therefore, this Court is of the opinion that the application for restoration is not maintainable as it will beget unnecessary and indefinite litigation which will not be useful for the safer administration of justice.
11. It may be stated that without showing sufficient cause, any suit, application or appeal cannot be restored. When it is proved on record that the counsel for the applicants appeared before the Court at Headquarter, Muzaffarabad after transfer of the case from Mirpur Circuit, then, the plea of not having knowledge cannot be accepted as the law is for the vigilant and not for the indolent and the party, seeking restoration is bound, not only to show sufficient cause for non appearance but also has to explain the delay each and every day. In case titled Muhammad Habib Khan v. Nasiri Khatoon and 11 others, [2006 SCR 22], it has been observed by the Hon'ble apex Court, as under:-
"8 -----------------------------------------------------------------------------------------Delay can be condoned only if some sufficient cause is furnished by the party seeking the same otherwise law expect due diligence, care and consciousness from the litigating public seeking redressal of their grievance through a legal process.
In the same judgment, the term has been defined by the apex Court as under:-
"The term 'sufficient cause' is such a cause which beyond the control of a party, therefore, the Courts have not given any premium to a party which is found negligent, indifferent and careless."
12. Restoration of a cause, merely on the pretext that valuable rights of a party is attached is also not permissible under law, until and unless sufficient cause for non-appearance is established. In case titled 'Azad Government and 10 others v. Abdul Rashid and 5 others (2002 CLC 1662), the apex Court of Azad Jammu and Kashmir has pleased to observe as under:--
"6. --------------------------------------------------------------------------------- Whether the important facts of law and facts were involved in the case is a different question altogether. Similarly the contention that the appeal should have been decided on merits as valuable rights of parties are involved has not been recognized as a sufficient cause for the restoration of suit/appeal which is dismissed in default for non-appearance."
13. The crux of the above discussion is that the instant application is hereby dismissed for having time barred.
Sd/-
Judge
Note: judgment has been written and duly signed. Deputy Registrar, Judicial Headquarter is directed to announced the same, with due notice to the parties, forthwith.
Sd/-
Judge
ZC/16/HC(AJ&K) Petition dismissed.