MUHAMMAD YAR and others vs ADDITIONAL CHIEF LAND COMMISSIONER and others
This matter concerns a miscellaneous application filed for the restoration of a Civil Review Petition that was previously dismissed for non-prosecution. The petitioners sought restoration, citing the absence of their counsel due to a lack of telephonic communication at his office in Multan. The Supreme Court examined the circumstances surrounding the dismissal, noting that neither the petitioners, the Advocate-on-Record (A.O.R.), nor the Advocate were present on the date of the hearing. The Court held that the absence of the A.O.R. and the Advocate, which hindered the progress of the proceedings, constituted non-prosecution. The Court rejected the argument that the lack of a telephone connection excused the counsel's absence, emphasizing that lawyers practicing before the Supreme Court must ensure they have adequate arrangements to remain informed of case progress. The Court affirmed that non-prosecution includes any act of omission or commission that thwarts the progress of a hearing. Consequently, the Court dismissed the application for restoration, finding the grounds offered insufficient to justify the failure to prosecute the matter.
- Does the absence of an Advocate-on-Record and an Advocate constitute non-prosecution of a case?
- Can a lack of telephonic communication be accepted as a valid ground for the restoration of a petition dismissed for non-prosecution?
- What constitutes non-prosecution in the context of Supreme Court proceedings?
ORDER
1. ' MUHAMMAD AFZAL ZULLAH, C J.---This miscellaneous application has been filed for restoration of a Civil Review Petition No, 39-R of 1984.
2. ' It cannot be denied from the petitioners side that on the day the review petition was dismissed for non-prosecution none appeared for them to prosecute the case. It is indeed important that three persons in this case were required to prosecute the petition for review. One, the learned Advocate; two, the learned A.O.R.; and three, the petitioner/s. None was present. The explanation offered in the application for restoration relates to the learned counsel for the applicants only. There is no explanation as to why none of the petitioners nor the A.O.R. Was present.
3. ' The absence of the petitioners in the circumstances of this case can be ignored as perhaps they were not made aware by their A.O.R. That the application was fixed on the day it was dismissed for non-prosecution. But this would not apply to the learned A.O.R. Himself. It is admitted in the application that he was aware that the application had been fixed for hearing. That being so, there is no reason why he should not have appeared in the Court. Although the learnedA.O.R. Has offered explanation that even if he had appeared, he could not have argued the review application as the original petition for leave to appeal against the dismissal of which the review application was filed, was argued by the learned Advocate himself; yet this cannot be treated as a valid ground for the absence of the A.O.R. It is admitted fact that many A.O.Rs, prepare and argue their cases better than many Advocates. It also cannot be denied that in absence of an Advocate the Court has often made use of the assistance of the Advocateon-Record. There are number of instances where relief has been granted to a party in absence of the Advocate and on the submissions made by his A.O.R. In this case also if the A.O.R. Would have appeared and he would have made a request for permission to him to argue the matter the same might have been granted. Be that as it may, the fact remains that the absence of the Advocate cannot be treated as in aid of the progress of the proceedings in the matter. On the contrary the progress of the proceedings was hindered by the absence of every body concerned, therefore, for this reason also the matter was rightly considered as one of non-prosecution, non-prosecution is not constituted merely by failure to appear but also by such acts of omission or commission on account of which the further progress of the hearing of the matter in this Court is thwarted. Depending upon the circumstances of each case repeated requests for adjournments would also fall in the scope of non-prosecution or failure to prosecute when it is demand of justice that it should not be delayed.
4. ' Although the foregoing discussion by itself is enough to refuse restoration of this case but there is another aspect of the matter. One of the grounds taken in the application for restoration reads as follows:-- "That the counsel did not happen to have a telephonic connection at Multan and, therefore, could not be informed in time."
5. 'Of late a tendency has been observed that some Advocates having their offices at `Mufassils'; away from the Registries of this Court, get themselves enrolled as Advocates of the Supreme Court even if they do not have any work--presumably for the sake of prestige.
6. ' However, those Advocates who are not active practising lawyers and occasionally accept briefs, their conduct is not in question in cases like the present one. Here the Advocate concerned normally accepts briefs for appearance in the Supreme Court. It is no service to this Court, that such a lawyer not only practices away from the Registries of this Court but also does not have adequate arrangements for keeping himself aware of day-to-day progress of hearing of the cases in this Court. And particularly when he does not have a telephone. It would be better for him not to accept the brief for the Supreme Court, because it, apart from causing inconvenience and embarrassm ent to everyone concerned even to himself, might in some cases lead to injustice. The Court would not accept the excuse that the Advocate had no telephonic connection, therefore, he could not be intimated about the case. To say the least it is the most extraordinary ground advanced in the application for restoration.
7. ' For all these aforestated reasons this application is dismissed.