Mst. SHAMSHAD BEGUM vs MUHAMMAD AMIN and 13 others
This petition for leave to appeal arises from a declaratory suit where the petitioner's appeal was dismissed in default by the District Court, and a subsequent application for restoration was also rejected. The High Court affirmed the dismissal, primarily reasoning that the petitioner failed to provide a sufficient explanation for the absence of her engaged counsel on the date of the hearing. The petitioner contends that she intended to appear personally to pursue the appeal but was prevented by an unfortunate incident, arguing that her personal presence would have precluded the dismissal for default regardless of her counsel's absence. The core legal question concerns whether the dismissal of an appeal for default is sustainable when the litigant offers a plausible explanation for their personal absence, potentially mitigating the absence of legal counsel. The Supreme Court granted leave to appeal, finding that the petitioner's explanation regarding her absence and related issues, including limitation, require further examination. The Court ordered the maintenance of the status quo pending the final adjudication of the appeal.
- Can an appeal be dismissed for default if the appellant is absent but provides a valid explanation for such absence?
- Does the absence of legal counsel justify the dismissal of an appeal if the litigant is prepared to appear personally?
ORDER
1. ' MUHAMMAD AFZAL ZULLAH, J.--This petition for leave to appeal by the plaintiff side in a declaratory suit is directed; against the dismissal by the High Court, of her appeal regarding a default order passed by the learned District Court.
2. ' Plaintiff's (petitioner's side) suit was dismissed by the trial Court. On appeal the learned District Court did not decide it on merits. It was dismissed in default of appearance. The appplication for restoration of the appeal was also dismissed by the District Court. Accordingly the petitioner filed an F.A.O. In the High Court which having been dismissed she has sought leave to appeal.
3. ' The main consideration which weighed with the learned Judge in the High Court was that the petitioner having engaged a counsel in the appellate Court to pursue the appeal, had failed to give any explanation for the absence of her counsel. Learned counsel contends that this approach of the High Court has prejudiced the petitioner and also resulted in injustice. According to him the petitioner wanted to appear in Court on the relevant date of hearing so as to pursue the appeal; but on account of an unfortunate incident she could not reach and thus the appeal was dismissed for default in her absence. The argument proceeds that if she would have reached the Court and had appeared, notwithstanding the absence of the counsel, the appeal could not have been dismissed.
4. ' On merits of this plea learned counsel contended that the High Court had not rejected it in so far as its factual aspect is concerned. It has, therefore, been submitted that the petitioner's explanation for her absence, if accepted, would neutralise the effect of the absence of her lawyer.
5. ' This and the other pleas taken in this petition together with related questions including that of limitation require examination. Leave to appeal, accordingly, is granted.
6. ' Security Rs,5,000.
7. ' Appeal shall be prepared on present record with direction to the parties to file all essential documents.
8. ' Status quo shall be maintained subject to notice.