ABDUL MAJEED MIRZA vs MUSLIM COMMERCIAL BANK Ss — 2023 PLC 226 NATIONAL-INDUSTRIAL-RELATIONS-COMMISSION

Fields are extracted from the reported citation and judgment text. Where a detail is not stated in the record, it is not shown.

ABDUL MAJEED MIRZA VS MUSLIM COMMERCIAL BANK Ss. 33, 54 & 58---Recalling (setting aside) order of dismissal of appeal for non-prosecution of appellant---Condonation of delay---Knowledge of dismissal of appeal---Scope---Effective hearing of the case---Scope---Record (order-sheet) revealed that main appeal had been adjourned at least four times, spanning almost a year, on the basis that the Full Bench was not available and the Reader of the Bench kept adjourning the case---Later when the case was listed, the adjournment was granted by the Reader, rather than Judicial Officer/Member, without marking any attendance of the parties by only stating that "Full Bench is not available is adjourned" to next date ; on which/next date the Full Bench held the session and dismissed the appeal for non-prosecution---When there was neither attendance of either party marked on order sheet of previous dates, nor any notice was served for date fixed, then inference could be drawn that applicant or his counsel had no knowledge about the fixation of appeal for the said date(when the appeal was dismissed)---Conduct of the applicant (appellant) and his counsel from the record (earlier orders) was found satisfactory as they kept on appearing before the Commission on various dates; it could not be inferred that they were not vigilant---Applicant / appellant or his counsel were unable to attend the court and were prevented by sufficient cause as they were unaware about the fixation of appeal, and record reflected that no proper procedure was adopted by the office to convey about the fixation of appeal---Even no order was placed on file reflecting the issuance of notices to the parties whereas it was obligatory for the Bench, since it was not in Session for long in session, to issue fresh notices to the parties in the interest of justice prior to dismissing the same on default---Effective hearing of any case/appeal would be the one on which the arguments of the parties were to be advanced/heard---Firstly, it was duty of the Commission to ascertain that appellant had been served the notice duly, if not then the appeal should not be dismissed for non-prosecution---Secondly, no act of the Court shall prejudice any party---Court/Commission was under obligation to reverse the wrong done to a party by the act of Court / Commission, which was an elementary doctrine and tenet to the system of administration of justice---Chief concern of administration of justice is to help people provide proper opportunity and not to thwart the rights of the people on technicalities; the same must be avoided as law always favours adjudication on merits rather than non-suiting the parties on technicalities and, therefore, further opportunity should be granted to the applicant / appellant to contest case/ appeal on merits---Applicant /appellant had succeeded in satisfying Full Bench of the Commission establishing of his inability to be present on the date fixed---Full Bench restored main appeal of the applicant /appellant---Applications for restoration of appeal and for condonation of delay were allowed, in circumstances. Reader of the Court has no power to adjourn the court proceedings, the same (adjournment) only rests with the Court / Commission---Adjournment can only be extended by the Judicial Officer /Member. Non-appearance of counsel---Affidavit submitted by the counsel of the party---Relevance---Under normal circumstances affidavits are not submitted by the counsel in his client's support---When a counsel submits affidavit mentioning the reason of non-appearance, it must be given due weight by the Courts /Commission and it is presumed that the same is based on true facts---Affidavit of the counsel alone is sufficient to accept the plea of the counsel, particularly when the record fully supports the version taken in the affidavit. S.58---Recalling (setting aside) order of dismissal of appeal for non-prosecution of appellant---Question was that whether the restoration of a case might be decided on the pre-liminary hearing without notice to the other party---Held, that principle of natural justice that "No one should be condemned unheard" is true where it is likely that the other party may suffer irreparable loss if it is left unheard; conversely, where prima facie case and balance of convenience lies in favour of the applicant as well as no valuable right of the opposite party withers away or no injustice is done to the other party, under such circumstances the matter can be decided on the basis of available record especially where technicalities may defeat the end of justice---Considering the restoration of main appeal, the main controversy among the parties should be decided on merits in order to meet the ends of justice rather than knocking out and depriving either of the parties of its valuable rights permanently---Deciding the application of restoration of main appeal on the preliminary stage without serving notice does not harm or infringe any valuable right of the opposite party as the main appeal under which the rights and obligations of the parties can be determined, had been dismissed for non-prosecution rather than on merits.

ABDUL MAJEED MIRZA vs MUSLIM COMMERCIAL BANK Ss — 2023 PLC 226 NATIONAL-INDUSTRIAL-RELATIONS-COMMISSION

Case information

Judgment text as reported

Other judgments reported in 2023 PLC