Judgment Sheet

IN THE HIGH COURT OF SINDH KARACHI

Constitutional Petition No. D – 7084 of 2016

                                                                                Before:

                                                                                Mr. Justice Nadeem Akhtar

                                                                                Mr. Justice Fahim Ahmed Siddiqui

Petitioners          :      Muhammad Ateeq and 5 others through petitioner No.1.

Respondents                 :      Muhammad Shafiq and another, called absent.

Date of hearing  :     16.02.2017

J U D G M E N T

NADEEM AKHTAR, J. – Through this Constitutional Petition, the petitioners have impugned order passed on 30.01.2014 by the learned trial Court in their Suit No.586/2013 whereby their said Suit was “disposed of” as having become infructuous, as well as order passed on 17.08.2016 in their Civil Revision Application No.11/2014 whereby their said revision against the aforesaid order was dismissed.  

2.         Relevant facts of the case are that the above Suit for declaration, cancellation of documents and injunction was filed by the petitioners against the present respondents 1, 2 and 5. In the said Suit, respondent No.2 / defendant No.2 filed his written statement and also a separate statement dated 07.12.2013 which reads as under :

“ STATEMENT

It is respectfully stated on behalf of defendant No.2 that this Hon’ble Court may be pleased to dispose of the instant Suit as the earlier Suit No.1202/2011 has been decreed in favour of defendant No.2 and in the earlier Suit as well as instant Suit the parties are same and property involved in the matter is also same therefore instant Suit became infructuous and liable to be disposed of in the interest of justice.”

            On the above statement, following order was passed on 30.01.2014 by the learned trial Court :

“Heard learned counsel for the defendant No.2. Neither plaintiff is present nor he filed the reply of statement of defendant No.2 while he received the copy of the said statement on 07.12.13. In view of the statement of the defendant No.2, the Suit stands disposed of as infructuous.”

            Being aggrieved by the aforesaid order of the trial Court, the petitioners filed a revision, but the same was dismissed. Thus, the orders passed by the learned trial Court and learned revisional Court have been challenged by them through this petition.

3.         Perusal of the above-quoted statement filed by respondent No.2 shows that it was not a mere statement, but was in fact an application as a prayer was made therein for disposal of the Suit in view of the reason stated therein. Thus the said application could not have been treated by the trial Court as a statement and no order could be passed thereon, firstly as requisite court fee was not affixed thereon, and secondly as notice thereof was not issued to the petitioners / plaintiffs as required under the law. Due to this reason, the petitioners / plaintiffs were not required under the law to respond to the said statement by filing objections or reply. The other important aspect of the case is that the Suit could not be disposed of as there is no concept under the Code of Civil Procedure for disposing of a Suit, except in cases where compromise applications are submitted by the parties seeking disposal of the Suit on the terms and conditions stipulated in such applications. A Suit can either be decreed or dismissed, wholly or partially, and in either case, a decree follows. The only other eventuality for terminating the proceedings in a Suit is rejection of the plaint.

4.         In the present case, if respondent No.2 was of the view that the Suit was barred under the principle of res judicata, which appears to be the reason as per the contents of his above statement, he ought to have filed a proper application for rejection of the plaint or dismissal of the Suit on such ground, and such application could not be decided without notice to the petitioners / plaintiffs. In the absence of any such application, the plaint could have been rejected suo moto by the trial Court. In any of the above events, an opportunity of hearing ought to have been provided to the petitioners / plaintiffs and they should not have been condemned unheard. The course adopted by the learned trial Court for disposing of the Suit on the basis of a purported statement, being alien to the Code of Civil Procedure, was, therefore, not legal. The other inherent defect in the impugned order of the trial Court is that it is a non-speaking order, which makes it void. By not remedying the error committed by the trial Court, the learned revisional Court failed in exercising the jurisdiction vested in it by law.

5.         In view of the above, both the impugned orders, being not sustainable in law, cannot be allowed to remain in the field, and as such are liable to be set aside. Accordingly, this petition and pending CMA No.33832/2017 are allowed with no order as to costs.

        J U D G E

  J U D G E