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Art. 168---Civil
Procedure Code (V of 1908), O.XLI, R.19---Readmission of an appeal
dismissed for non-prosecution ---Limitation---Determination---Re-listing
of appeal in different High Court---No notice issued to the defendant of
such re-listing---Effect---Appeal filed by the defendant (respondent)
transferred from the (Lahore) High Court to (Islamabad) High Court
without giving any notice to the defendant or his counsel---Appeal
re-listed in the (Islamabad) High Court after directions to the office to
issue notice to the defendant and his counsel---No such notice
issued---Appeal dismissed for "non-prosecution " due to non-presence of the defendant and his
counsel---Application of defendant for restoration of his appeal and condonation of delay was
allowed by the (Islamabad) High Court through the impugned
judgment---Validity---(Islamabad) High Court had directed the office to
re-list the case (appeal) after issuance of notice to the defendant and
his counsel, but the office re-fixed the case without issuing
notices---Where during the hearing of a case, a date was given in the
presence of a counsel, then his non-appearance could be taken notice of
and the case could be dismissed for non-prosecution but
where date was not given in his presence and his name did not appear in
the cause list then an order for dismissal for non-prosecution would
not be considered to be legal---In the present case, although the name of
the counsel who filed his 'Vakalatnama' in the (Lahore) High Court on
behalf of the defendant, appeared in the cause list but same was no
consequence because the 'Vakalatnama' was given to appear befor e the (Lahore) High Court and not befor e (Islamabad) High Court---Issuance of notice to the
defendant was necessary befor e the case could be dismissed for non-prosecution ---Order
of (Islamabad) High Court by which it dismissed the appeal for non-prosecution had
been passed in complete violation of the rules of natural justice and
void---Supreme Court directoral the Islamabad High Court to treat the
matter pending and fix the same for hearing after issuance of notices to all the parties.
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