MAHMOOD and another vs CHIEF ADMINISTRATOR AUQAF, PUNJAB, LAHORE

ORDER

' AJMAL MIAN, J.--This is an appeal with the leave of this Court against the order of a learned Single Judge of the Lahore High Court dismissing the appellants' application for restoration of the appeal on 11-12-1991.

2. The brief facts are that the appellants filed a petition under section 7 of Waqf Properties Ordinance, 1973, hereinafter referred to as the Ordinance, challenging the notification issued by the respondent-department resuming the control and management of the properties mentioned therein, which was dismissed. Thereupon, the appellants filed F.A.O. No, 132 of 1982 in the Lahore High Court at Rawalpindi Bench. They engaged Hakim Muhammad Sardar Khan, Advocate, whose Vaal anima expressly provided that he would only appear at Rawalpindi. The appeal was admitted to regular hearing to 3-6-1981. Before it could be heard and disposed of at Rawalpindi, the same was transferred to the principal seat of the High Court at Lahore. It appears that the High Court's office at Lahore issued a postcard addressed to the above Advocate informing him that, the appeal was fixed for hearing on 11-12-1991. The same was dismissed as none appeared. The appellants' above application for restoration was also dismissed through the order under appeal.

After that the appellants filed a petition for leave to appeal, which was granted to consider, whether the High Court was justified in rejecting the aforesaid restoration application in view of the fact that no personal notice was sent to the appellants for the above date of hearing.

3. We have heard the learned counsel for the parties. We have also perused the Vakalatnama which was filed by Hakim Muhammad Sander Khan, Advocate, on behalf of the appellants, which indicates that it was expressly stated that he would appear in the above appeal only at Rawalpindi.

In view of the above factual position, it was incumbent on the office of the High Court to have issued notice to the appellants in person for the above date of hearing instead of sending a postcard to Hakim Muhammad Sandra Khan, Advocate. We are, therefore, of the view that the learned Judge in Chambers should have allowed the above restoration application though it was filed after the expiry of limitation period for obvious reason that the appellants had no knowledge about the dismissal of the appeal.

4. This appeal has also been shown as time-barred by 178 days, but it seems that the period of limitation has been computed by the office from the original order and not from the date of the order of dismissal of appellants' application for restoration of the appeal. If we were to calculate the period of limitation from 16-5-1992 and exclude the period spent in obtaining certified copy of the above order, it seems that the petition was filed within time.

5. We, therefore, allow the above appeal, set aside the High Can order dated 12-5-1992 and the aforesaid order of dismissal dated 11-12-1991. The above F.A.O. No, 132 of 1982 shall be deemed to be pending before the High Court at Lahore. It shall be disposed of after notice to the appellants and not to their advocate unless an advocate is engaged by them for Lahore.