Mst. MEHR TAJA vs Mst. BABO JAN AND OTHERS
This matter concerns a petition for leave to appeal against an order of the Peshawar High Court, which refused to restore a regular Second Appeal that had been dismissed for non-prosecution. The petitioner challenged the dismissal, arguing that she had not received notice of the hearing date and that the court was wrongly influenced by a history of adjournments. The core legal question was whether sufficient grounds existed for the readmission of an appeal dismissed for non-prosecution when the appellant claimed lack of notice. The Supreme Court held that since the petitioner was represented by counsel stationed at the seat of the court, the plea regarding lack of notice was untenable. Furthermore, the Court rejected the argument that the case papers were removed to engage new counsel, noting that the original counsel had not withdrawn with the court's permission as required by procedural rules. Consequently, the Court affirmed the High Court's decision, finding no justifiable ground for restoration, and dismissed the petition, emphasizing that procedural rules regarding counsel withdrawal must be strictly followed.
- Can an appellant seek restoration of an appeal dismissed for non-prosecution on the grounds of lack of notice when represented by counsel?
- Is an application for restoration of an appeal maintainable if the appellant's counsel did not withdraw from the case with the court's permission?
- Does the history of previous adjournments influence a court's decision on an application for restoration of an appeal?
ORDER
' ZAFFAR HUSSAIN MIRZA, J.-Being aggrieved by a decree passed against her in a suit for possession on 19-9-1971 by the Civil Judge 1st Class, Peshawar, the petitioner filed an appeal before the District Judge, Peshawar, which was heard and dismissed by the Additional District Judge, Peshawar vide judgment dated 2-2-1976.
2. The petitioner then filed a regular Second Appeal before the Peshawar High Court, Peshawar. On 18-1249S2 when the appeal was called on for hearing, however, neither the petitioner nor her counsel was present, consequently the appeal was dismissed for non-prosecution. According to the petitioner when her husband went to the office of the High Court for seeking information with regard to the fixing of the hearing of the appeal which was being awaited, he learnt for the first time that the appeal had been dismissed for non-prosecution. On 16-1-1983, therefore, an application was submitted on behalf of the petitioner for readmission of the appeal and its fresh decision, mainly on the ground that no notice of the date of hearing was served by her. The learned Chief Justice upon hearing the learned counsel for the petitioner, however, dismissed this application holding that no sufficient ground for readmission of the appeal was made out vide order dated 30-1-1983.
' The present petition is directed against the last mentioned order refusing to restore the appeal for fresh decision. The main ground urged in support of the petition by Mr. Sardar Khan, Advocate is that the learned Acting Chief Justice has been wrongly influenced by the consideration that the appeal was adjourned at the instance of the petitioner on many previous occasions as the appellant's counsel avoided to appear before the Court on one pretext or the other. Learned counsel submitted that most of the dates referred to in the order in this connection related to the period when the appeal was not ripe for hearing but was given up before the Additional Registrar.
He, however, conceded that some of the adjournments were obtained thereafter by the petitioner's counsel.
4. After bearing the learned counsel we find that the petitioner was represented by a counsel stationed at Peshawar and, therefore, there was no question of the notice for the hearing not having been served on the petitioner when the appeal was called up and dismissed for non- prosecution. Indeed this being the only ground on which the restoration of the appeal was being sought, we see no reason to disagree with the view taken by the learned Acting Chief Justice that no justifiable ground in support of the prayer for restoration was made out. Learned counsel further contended that the case papers were taken away by the counsel appearing for the petitioner as she wanted to engage another counsel. There is no force in this submission as admittedly the counsel representing the petitioner did not withdraw from the case with the permission of the Court as required by the rules.
5. For the foregoing reasons this petition is without merit and is accordingly dismissed.