Haji MUHAMMAD NAWAZ vs RAHIM BAKHSH and 6 others
This matter concerns a petition for leave to appeal against the High Court's dismissal of a Regular Second Appeal for non-prosecution. The petitioner sought restoration of the appeal, citing circumstances explained in an affidavit by his counsel, which detailed the reasons for non-appearance and the delay in bringing the legal representatives of a deceased respondent on record. The Supreme Court examined whether the counsel's explanation, based on an estimate of court time and the belief that the case would be re-listed, constituted 'sufficient cause' for restoration, referencing established precedent regarding lawyer conduct and court attendance. Furthermore, the Court identified significant legal questions regarding the procedural duty of the respondents to assist in bringing legal representatives of a deceased party on record and whether an appeal can be effectively adjudicated without such impleadment. Finding merit in the petitioner's arguments, the Supreme Court granted leave, converted the petition into an appeal, and directed the preparation of the appeal on the existing record with provisions for necessary additional documentation.
- Does a lawyer's reasonable estimate of court time and the subsequent belief that a case would be re-listed constitute sufficient cause for the restoration of an appeal dismissed for non-prosecution?
- Is there a duty upon the respondents to assist the court in bringing the legal representatives of a deceased respondent on record?
- Can an appeal be effectively decided without impleading the legal representatives of a deceased respondent?
ORDER
1. ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought, against the dismissal by the High Court, of the petitioner's application for setting aside the dismissal of his Regular Second Appeal, for non-prosecution.
2. ' Another subsidiary question is also involved, namely, whether the appeal could also be dismissed for non-prosecution on account of failure of the petitioner to bring on record of the appeal, legal representatives of deceased (respondent No,2).
3. ' Learned counsel has relied upon the affidavit of Sardar Mahmood Khan, Advocate who had appeared for the petitioner in the High Court at Bahawalpur. He is a well-known very senior lawyer.
4. There is no reason for us not to act upon his affidavit. He has fully explained the circumstances in which the appeal was dismissed for non-prosecution. He has also given the reason why the bringing on record of the Legal heirs, got delayed. The circumstance that the application for restoration of the appeal was delayed has also been fully explained in the affidavit. As already observed if the affidavit is believed there was no reason not to restore the appeal.
5. As to the question; whether, the reason mentioned in the affidavit constituted sufficient cause for restoration, learned counsel relied on 'Jan Muhammad v. Muhammad Asghar' (PLD 1981 SC 513). It supports him, in that, Sardar Mahmood Khan had asserted in the affidavit that he had attended and appeared in the Court during the early working hours of the day and had made an estimate of time that on account of hearing of another case the petitioner's appeal would not reach and subsequently thought that it had been left over. If that were so it would be re-listed; and presumably that is why the delay in filing the restoration application took place. In the cited case similar explanation based on an estimate of time by a lawyer, was accepted.
6. On the question of impleading the legal representatives of the deceased respondent also the points raised by the learned counsel have, prima-facie, force One, whether it was not the duty of the respondents' side also to help and assist the Court in bringing on record the legal representatives of the deceased respondent; and, whether the appeal could not be decided effectively without impleading the said L.Rs, The afore-noted questions and those raised in this petition require examination.
7. ' Security Rs,5,000.
8. ' This petition is converted into appeal. Security to be deposited within two weeks. The appeal shall be prepared on the present record with direction for filing of all additional documents which would be necessary for the disposal of the appeal.