ZIJLFIQAR ALI vs LAL DIN AND Another

1. HAMOODUR RAHMAN, C. J.-This is a petition for special leave to peal from an order of a Division Bench of the Lahore High Court dismissing in limine an appeal from an order of a learned :jingle Judge of the same High Court refusing to restore a second appeal dismissed on the 29th of March 1973, for default, The second appeal which was dismissed for default was from an order of an Additional District Judge, Lyallpur, affirming the order of a Rent Controller directing the ejectment of the petitioner.

2. The appeal was dismissed as no one appeared when it was called on. Subsequently, an application was made for the restoration of the appeal on the ground that the learned counsel who had been given the brief by the learned counsel engaged by the petitioner had contacted the Reader of the Court on the 28th and the 29th of March 1973, and had been told that there was little chance of the case reaching for hearing on those days. He left the Court under this impression.

3. The Reader, when examined by the Curt denied having given any such information to any learned Advocate. The learned Advocate concerned was then called and he too admitted that he had not contacted the Reader as alleged in the restoration petition but his Clerk had told him a day earlier that the case had been adjourned as left over and would come up in the following week.

4. Since the statement made by the learned counsel was contrary to the ground taken in the application for restoration, the learned Judge refused to restore the appeal and dismissed the application for restoration. The petitioner then filed an appeal under section 3 of the Law Reforms (Amend--ment) Ordinance, 1972 (XXXIV of 1972), but the High Court dismissed the same both as being incompetent under the said Law Reforms Ordinance and also on the ground that the appeal had no merits.

5. Learned counsel appearing in support of this petition has contended that the dismissal of the appeal for default was Joe to the negligence of the learned counsel and not due to any negligence on his part, and, therefore, the restoration should have been allowed.

6. The contention is without any force. The mere fact that a litigant has engaged a counsel to appear on his behalf does not absolve him of all responsibility. It was as much his duty as that of the learned counsel engaged by him to see that the appeal was properly and diligently prosecuted. If he engaged a counsel who was lacking in his sense of responsibility to the Court, it is he who should suffer and not the other side.