MUHAMMAD HANIF vs CHIEF SECRETARY, GOVERNMENT. OF SINDH, KARACHI
This petition for leave to appeal arose from an order of the Sindh Service Tribunal, which dismissed the petitioner's application for the restoration of an appeal previously dismissed for non-prosecution. The petitioner sought restoration after a delay of approximately one and a half years, citing his own illness and the illness of his mother as reasons for his absence and lack of knowledge regarding the dismissal. The Service Tribunal rejected the restoration application, noting that the medical certificates provided were not countersigned by the Civil Surgeon as required by law, and that the petitioner failed to explain the prolonged delay or why his counsel did not appear. The Supreme Court reviewed the impugned order and found that the petitioner failed to demonstrate that his illness rendered him immobile or unable to communicate with his counsel. Affirming the Tribunal's reasoning, the Court held that the petitioner failed to explain the delay of every day, a mandatory requirement for condonation. Consequently, the Court found no substantial question of law of public importance and dismissed the petition for leave to appeal.
- Is a party seeking restoration of an appeal dismissed for non-prosecution required to explain the delay of every day?
- Does the mere production of medical certificates without countersignature by a Civil Surgeon satisfy the legal requirement for proving illness in a restoration application?
- Can an appeal be restored where the petitioner fails to explain the absence of their legal counsel during the original proceedings?
- Section 5, Limitation Act 1908
ORDER
' NASIR ASLAM ZAHID, J.---Petitioner Muhammad Hanif has tiled this petition seeking leave against the following order dated 15-6-1998 passed by the Sindh Service Tribunal dismissing his appeal:-- ' "Heard Mr. Abdul Karim, Advocate for the appellant. He has filed an application on 12-5-1998 requesting therein that the appeal dismissed on 29-12-1996 he restored in the interest of justice which is supported by the affidavit of the appellant as well as four (4) medical certificates issued by Dr. Abdullah Khan Marwat, Senior Medical Officer ,Incharge D.H.Q. Lakki Marwat; he has also filed an application under section 5 of the Limitation Act which is also supported by the affidavit. The main contention of the learned Counsel is that the appellant left for his village in the month of December, 1995, due to illness of his mother and subsequently he himself fell sick and was under treatment and advised rest. According to him he came to know about the dismissal of the appeal on 30-4-1998 as such he filed this application for restoration on 12-5-1998. The main contention of the learned counsel is that the absence was beyond the control of appellant but no reason whatsoever assigned as to why his advocate did not appear nor there is any affidavit of the Advocate to this affect as to why he chooses to remain absent. Perusal of the medical certificate reveals that doctor has advised the appellant bed rest and not to take journey but not mentioned that he was also not in a position to a telephonic conversation or postal information from his Advocate. The learned counsel has relied on 1990 PLC (C.S.) P-398 and 1986 PLC P-257 and 300. We have minutely gone through the medical certificates, this medical certificate is even not counter- signed by the Civil Surgeon of the area as provided by law. This appeal was dismissed on 29-12- 1996 and restoration application is filed on 12-5-1998, as such there is a delay of about one and a half year which has not been explained and it is an established law that delay of every day is to be explained. Since there is delay of one and a half year we don't find any justification, even in the absence of the affidavit of Advocate. We accordingly reject this application."
' We have heard Mr. M. Muzaffarul Hall, learned Advocate Supreme Court for the petitioner, in support of the present petition for leave.
2. As is evident from the impugned order reproduced hereinabove, appeal tiled by the petitioner before the Service Tribunal was dismissed on 29-12-1996 for non-prosecution and the petitioner filed an application for restoration of the appeal after about 1-1/2 year on 12-5-1998. Valid reasons have been given by the Tribunal which are apparent from a perusal of the impugned order. At best, the case of the petitioner, if accepted in toto, is that he had gone to his village in December, 1995, on account of illness of his mother and subsequently he became sick and remained under medical treatment and came to know about the dismissal of the appeal on 30-4-1998 and then he filed the application for restoration on 12-5-1998. Petitioner's case is of sickness and being advised to take rest. His case was not even this that he was suffering from a disease which made him immobile for all practical purposes and that there was no member of his family who could contact petitioner's Advocate or post a letter to him to find out the fate of his appeal. Reasons given by the Tribunal for dismissal of the application for restoration are weighty and the impugned order does not call for interference. Even otherwise the case does not involve any substantial question of law of public importance for grant of leave.
' This petition lacks merits which is accordingly dismissed and leave is refused.