MUHAMMAD SIDDIQUE and anothers vs MEMBER (CONSOLIDATION), BOARD
This matter concerns a petition for leave to appeal against an order of a Judge in Chambers, which had dismissed an application under Section 151 of the Code of Civil Procedure 1908 for the restoration of a Constitution petition previously dismissed for non-prosecution. The core legal question was whether the petitioners demonstrated sufficient cause for restoration, given that their original counsel had retired from practice without notifying them, leading to their absence on the date of hearing. The Supreme Court held that the petitioners were not negligent, noting that the petition had remained pending for eight years and that parties in constitutional petitions generally rely on their counsel for updates. The Court found that the failure of the retired advocate to inform the clients constituted sufficient ground for restoration. Consequently, the Court converted the petition into an appeal, allowed it, set aside the dismissal order, and restored the Constitution petition to its original number, subject to the payment of costs by the petitioners.
- Does the retirement of a counsel without notice to the client constitute sufficient cause for the restoration of a petition dismissed for non-prosecution?
- Is a party to a Constitution petition required to appear on every date of hearing regardless of instructions from their counsel?
- Section 151, Code of Civil Procedure 1908
ORDER
' SALEEM AKHTAR, J.---The petitioners seek leave to appeal against the order of the learned Judge in Chambers whereby their application under section 151, C.P.C. For recalling order dated 4-10-1992 dismissing writ petition for non-prosecution and seeking restoration thereof, was dismissed.
2. The petitioners had filed an application for restoration on the ground that they had engaged Mian Samiuddin, Advocate when they filed Constitution petition in the year 1984. The said Advocate retired from the legal profession in the year 1987 and the petitioners were neither aware of his retirement nor about the date of hearing and thus could not appear on 4-10-1992 when the petition was dismissed. It was alleged that when the respondents were moving for taking possession, the petitioners came to know about it and then filed application for restoration. This plea was not accepted by the learned Judge in Chambers.
3. Mr. Muhammad Ilyas Khan, learned counsel for the petitioners contended that sufficient reason had been made out for setting aside the order. Mr. Muhammad Ashraf Wahla, learned counsel for the respondents opposing the petition contended that the petitioners and their advocate had been negligent in prosecuting the matter and therefore the order of dismissal cannot be set aside.
It may be noted that the Constitution petition was filed in the year 1984 and had not come up for hearing till 1992. During this period the petitioners' Advocate retired from practice, but failed to inform the petitioners. This being a Constitution petition, the parties are usually not required to appear on each date of hearing unless instructed by the Advocate. Considering the fact that the petition did not come up for hearing for long, the petitioners had relied upon the Advocate. In these circumstances, there was sufficient ground for setting aside the order particularly as the learned Advocate had filed his affidavit. We, therefore, convert this petition into an appeal and allow it. The order of dismissal of the Constitution petition is set aside and the same is restored to its original number. The petitioners shall pay costs of Rs,1,000 to the learned counsel for the respondents.