MUHAMMAD ISMAIL and others vs MUHAMMAD ASLAM and 2 others
This matter concerns a petition for leave to appeal against a Lahore High Court order that dismissed an application for the readmission of an appeal previously dismissed for non-prosecution. The core legal question was whether the petitioners' failure to appear, attributed to a change in counsel and the subsequent non-appearance of both the original and new counsel, constituted excusable negligence or gross negligence warranting the dismissal of the appeal. The petitioners argued that their new counsel had been engaged but failed to file a Wakalatnama, and that they should not be penalized for counsel's negligence. The Supreme Court held that the petitioners' reliance on precedent regarding court officer negligence was misplaced, as the new counsel had failed to file the Wakalatnama with the court, keeping it in his possession instead. The Court affirmed the High Court's decision, ruling that the failure to properly engage counsel and ensure representation constituted gross negligence. The principle laid down is that a party cannot claim relief for non-prosecution where the failure to appear stems from their own or their counsel's failure to file the necessary legal documentation (Wakalatnama) with the court.
- Does the failure of a newly engaged counsel to file a Wakalatnama with the court constitute a valid ground for the restoration of an appeal dismissed for non-prosecution?
- Can a party claim relief for non-prosecution based on the negligence of their counsel when the counsel failed to place the necessary documentation on the court record?
- Is a High Court order dismissing an application for readmission of an appeal justified when the petitioners failed to ensure their representation was properly recorded?
' MUNIR A. SHEIKH, J.---Leave to appeal is sought against the judgment/order, dated 3-7-1997 of the Lahore High Court through which application filed by the petitioners for readmission of their appeal dismissed for non-prosecution through order, dated 26-2-1997 has been dismissed.
2. The appeal (A.R.S.A. No,380 of 1966) was filed by Ch. Muhammad Rafique Chohan Advocate on behalf of the petitioners. According to the petitioners, their said learned counsel had gone abroad when the appeal was listed for hearing on 24-10-1996 on which date it was adjourned to 27-11-1996, from 27-11-1996, it was adjourned to 26-2-1997 when the same was dismissed for non-prosecution.
On all these dates, the name of learned counsel for the petitioners namely Ch. Muhammad Rafique Chohan Advocate continued to be printed in the cause list. The case of the petitioners was that they engaged Ch. M.Z. Khalil, Advocate on 27-11-1996 but he did not file Wakalatnama in the Court but kept the same with him and appended the same with the application seeking re-admission of the appeal in order to show that he had been sustained on 27-11-1996 by the petitioners as counsel in the appeal, as such nonappearance of their original counsel as also the petitioners was not intentional. The learned Judge in Chamber held that it was case of gross negligence on the part of the petitioners, therefore, the application was dismissed through the impugned judgment/order, dated 3-7-1997, against which leave to appeal has been sought.
3. Learned counsel for the petitioners placed reliance on the judgment reported as Furman Ali v.
Muhammad Yousaf Ali and another PLD 1992 SC 330) in order to contend that for negligence of the counsel in the facts and circumstances of the present case, the petitioners should not be penalized. The facts of the reported case were different. It was the negligence of the officer of the Court to whom Wakalatnama was submitted for placing the same on the record but he did not do so on account of which the name of the original counsel who had already been substituted was printed in the cuase-list and it was in these circumstances that it was held that the negligence of the officer of the Court could not be allowed to prejudice the case of the petitioners as once the Wakalatnama has been submitted to the concerned quarters in the Court, it should have been placed on the record, as such, it was not a case of negligence of the learned counsel for the party.
4. Learned counsel for the petitioners when questioned submitted that on the Wakalatnama submitted by Ch. M.Z. Khalil, Advocate, 27-11-1996 date has been mentioned as the date on which he was engaged but when further inquired he frankly admitted that the court-fee stamp affixed on the said Wakalatnama is not -of the said date and that the same was also not submitted in the concerned Branch of the High. Court for placing the same on the record but was kept by the learned counsel with him and it was filed only alongwith the application seeking re-admission of the appeal.
5. In these circumstances, the learned Judge in Chamber of the High Court was legally justified in holding that it was a case of gross negligence and we do not feel disposed to interfere in the impugned order which does not suffer from any illegally, therefore, this petition has no force which is accordingly dismissed and leave to appeal refused.