ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No.D-3314/2012

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Date Order with signature of Judge

1.For hearing of CMA No.2269/2014.

2.For hearing of CMA No.33352/2013.

3.For hearing of CMA No.33353/2013.

Date of hearing: 07.02.2014:

Mr. Hasan Khursheed Hashmi, Advocate for Petitioner.

Mr. Salman Hamid, Advocate for Respondents No.2 to 8.

Mr. Irfan A. Memon, Advocate for the Respondent No.9.

Mr. Saeed A. Memon, learned Standing counsel.

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SYED HASAN AZHAR RIZVI, J:- Through CMA No.33352/2013 filed by the petitioner for restoration of the instant petition, which was dismissed for-non-prosecution on 02.10.2013. The application is duly supported by an affidavit of petitioner Mohammad Yaqoob.

We have heard the learned counsel and perused the material available on record.

Learned counsel for the petitioner contended that on 09.09.2013 the then counsel of the petitioner Mr. Khalid Mehmood Siddiqui informed the Court that he has no instruction in the matter and the Court sent direct notice to the petitioner for 02.10.2013, but record does not show that any notice was issued to the petitioner for the said date. He contended that petitioner came to know on 23.12.2013 when he visited the National Highway Authority for some work about order dated 02.10.2013 and on the very next day he filed the instant application for restoration of this petition alongwith application under Order XXXIX Rules 1 & 2 CPC. He submitted that case was not heard on merits and was dismissed in absence of the petitioner without affording an opportunity of being heard. He, therefore, prayed for grant of the instant application and disposal of case strictly on merits. In support of his submissions, he placed reliance on the cases of PIRZADA NIAZ AHMED FAROOQUI THROUGH LEGAL REPRESENTATIVES vs. MUHAMMAD BUX & OTHERS (2004 SCMR 862), DHANJISHAW BEHRAMJI GHADIALLY & OTHERS vs. ABDUL LATIF KHAN (1983 SCMR 1003) and MUHAMMAD SIDDIQUIE & ANOTHER vs. MEMBER (CONSOLIDATION), BOARD OF REVENUE LAHORE & 4 OTHERS (1994 SCMR 1972).

Mr. Salman Hamid, learned counsel for the respondents No.2 to 8 stated that notice was issued to the petitioner for 02.10.2013, which is available on record. He also stated that on 02.10.2013 the petition was dismissed during second round. He submitted that petitioner is not entitled for any leniency for the simple reasons that Court has rightly dismissed the petition after following the procedure. He, therefore, prayed for dismissal of application under reply.

Perusal of record reveals that on 09.9.2013 Mr. Khalid Mehmood Siddiqui, advocate stated that he is no more appearing for the petitioner and the counsel earlier appearing in the matter on behalf of the petitioner (Mr. Hasan K. Hashmi, advocate) has instructions in the matter and the Court in order to avoid future confusion directed the office to remove the name of Mr. Khalid Mehmood Siddiqui form the file cover. The Court while issuing direct notice to the petitioner for 02.10.2013 further observed that if petitioner or learned counsel are not in attendance on the next date petition may be dismissed for non-prosecution. Since no one was in attendance on 2.10.2013, Court dismissed the petition for non-prosecution. It further appears from the record that notice was issued to the petitioner at the address given in the memo of petition, which was returned unserved with the endorsement of the bailiff that petitioner’s address was incomplete. Petitioner was present at the time of hearing and we directed him to produce his CNIC, which he did. On perusal of CNIC it transpired that his address in his CNIC No.42401-3518038-5 issued on 21.06.2012 is House No.1131, Muslim Colony, Jiskani Mohalla, Greaks Village, Mauripur Road, Karachi. Photocopy of CNIC was kept on record. Present petition was filed on 17.9.2012 and CNIC was issued to the petitioner on 21.06.2012, which clearly establishes that the petitioner intentionally had given his wrong address in the title of the memo of petition. Even assuming that the petitioner is residing at the address given in the memo of petition, which was also found incomplete as he has failed to mention the exact location of his residence by specifying famous place of the locality/Mohalla and/or street number. As such, the notice issued for 02.10.2013 was not served upon the petitioner. Record further shows that Mr. Hasan K. Hashimi, advocate has not filed any application for discharge of his Vakalatnama and his name is continuously appearing in the daily cause list. However, we have asked the learned counsel as to whether his name was appearing in the daily cause list for 02.10.2013 or not but he was unable to furnish any plausible explanation except that he was again engaged by the petitioner recently. Moreover, the case law cited by the learned counsel for the petitioner relates to admission of the counsels of their negligence by filing their personal affidavits in these cases, but in the case in hand the learned counsel appearing for the petitioner has failed to file his personal affidavit and mere filing fresh Vakalatnama has not absolved him from his responsibility ordained by law.

Foregoing are the reasons for the short order dated 07.2.2014 whereby we dismissed the application for restoration of the instant petition.

JUDGE

Karachi; JUDGE

Dated:22.02.2014.