GHULAM MUSTAFA SHAH vs HAJI through Legal Heirs and others
This civil appeal challenges an order of a Judge in Chambers dismissing an application for the re-admission of an appeal under Order XLI, Rule 19 of the Code of Civil Procedure 1908. The core legal question was whether the dismissal of the appeal due to the counsel's failure to notice the case in the cause list, despite a prompt application for restoration, was justified given the counsel's affidavit explaining the oversight. The Supreme Court held that the impugned order was unsustainable. The Court found that the counsel's explanation of an inadvertent oversight was uncontroverted by any counter-affidavit, and the application for restoration was filed with promptness. The Court determined that the absence was neither deliberate nor wilful, but rather a bona fide mistake. Consequently, the appeal was allowed, the impugned order set aside, and the matter remanded for hearing on merits. The key principle established is that where an appellant demonstrates a bona fide mistake and the absence was not due to negligence, carelessness, or wilful default, the court should exercise its discretion to restore the appeal.
- Can an appeal be restored under Order XLI, Rule 19 of the Code of Civil Procedure 1908 if the counsel's failure to appear was due to a bona fide oversight?
- Is an uncontroverted affidavit by counsel regarding an oversight in checking the cause list sufficient grounds to restore a dismissed appeal?
- Order XLI Rule 19, Code of Civil Procedure 1908
1. ' SALEEM AKHTAR, J.---The appellant by the leave of this Court challenges the order of learned Judge in Chamber whereby the application under Order XLI, Rule 19, C.P.C. For re-admission of the appeal was dismissed. The appeal was dismissed on 18-10-1988 and an application for readmission was made on 22-10-1988. The advocate for the appellant filed his affidavit stating that he could not detect the case while examining the cause list and inadvertently lost sight of it. The explanation was not accepted. Leave was granted to consider whether in view of the affidavit of the counsel in the High A Court and decision in Shoukat Hussain and others v. Mst. Saghiran Begum and others PLD 1983 SC 263, the impugned order could be justified.
2. The explanation offered by the learned counsel for the appellant was that due to over-sight he could not notice case in the cause list which resulted in his non-appearance on 18-10-1988. This statement made in the affidavit has not been challenged or controverted by filing any counter- affidavit as stated by the learned counsel for the appellant. The appellant had made the application with promptness and there does not seem to be any negligence or carelessness on the part of the Advocate in not noticing the case which was listed in the cause list. As the error and slip occurred it is to be considered whether the absence was deliberate, wilful or as result of negligence and carelessness. If the appellant is not guilty of any of these factors and shows bona fide mistake, the case depending on the facts and circumstances, may be restored. Reliance can be placed on Shoukat Hussain and others v. Mst. Saghiran Begum and others (ibid). Applying this principle in our view the appeal should be allowed. The impugned order is set aside and the appeal will now be heard on merits.
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