ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI.

R.A. No.112 of 2008

Date Order with Signature of Judge

For Katcha Peshi.

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18.05.2009.

Mr. Sain Ghulam Asghar, Advocate for the applicants.

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Notices were issued to the respondents No.1 to 13 but they refused to receive the notice on the ground that no male member was there, therefore, copy of the notice was pasted at the outer door of their residence. Today, none is present for the respondents despite repeated calls, therefore, case has been taken to be heard on merits.

Contention of the learned counsel for the applicants is that the arguments in the matter were heard by the appellate court on 24.11.2007 and 16.4.2008 and that the judgment was passed on 27.5.2008. He submits that the gap between two dates of arguments is contrary to the spirit of law while the order has also been passed after a month.

Keeping in view the reported authority i.e. SBLR 2007 SC 100, order dated 27.5.2008, passed in Civil Mis. Appeal No.33/2005 is not maintainable. Since the contention raised before this Court is in respect to the law supported by reported authority as well as facts on record, therefore, no further factual position is required to be considered except Order XX Rule 1(2) C.P.C. which provide as follows:-

"1. Judgment when pronounced. (1) On completion of evidence, the Court shall fix a date, not exceeding fifteen days, for hearing of arguments of parties.

(2) The Court shall, after the case has been heard, pronounce judgment in open Court, either at once or on some future day not exceeding thirty days, for which due notice shall be given to the parties or their Advocates.]

 

The above said rule shows that the law desires that after completion of evidence, matter be taken up for hearing of arguments within fifteen days and within thirty days after the arguments, judgment be passed in a matter. In the instant case, the matter was heard on 24.11.2007 but was re-heard after a long interval on 16.4.2008, which gap cannot be justified as by that time it would be difficult for a Judicial Officer to recall the facts and contention of the parties keeping in view that the thirty days time limit has been fixed for pronouncement of judgment after hearing of final arguments, therefore, wisdom demands that the gap between hearing of arguments on different dates should be minimum. Moreover the Order was passed on 27.5.2008 i.e. after more than a month while arguments were finally concluded on 16.4.2008. The above factual position is being established by the diaries, which have been submitted and available at Pages No.113 to 117 of the file. It has further been observed that word "Shall" has been used in both the subsections (1) & (2) of above rule and apparently it is mandatory in nature. The spirit of faster adjudication also demand that when a case is taken for hearing after completion of the evidence then it is to be completed as fast as possible.

Keeping in view the authority (ibid) order impugned cannot be sustained. The Hon’ble Supreme Court has held as follows:-

"6. With regard to the writing of judgment, the directions can be found under Order XX Rule 1(2) of the CPC. It lays down imperatively that, after the case bad been heard, the Court shall pronounce judgment in the open Court either at once or on some future date not exceeding thirty days, for which due notice shall be given tot he parties or their Advocates. The Code applies to the High Court as well but if its application is relaxed in the exercise of constitutional jurisdiction. One can conclude that judgment be pronounced on some future date, to be reasonably calculated. Through, strictly speaking departure form thirty days is not justified otherwise. Abdul Aziz, CJ in Pathana Vs. Mst. Khandal (PLD 1952 Baghdad-ul-Jadid 38) had observed that judgment, with reference to Order XX rule 1 CPC, delivered after five months of hearing arguments is tantamount to delivering judgment without hearing the parties. A full bench of this Court in Syed Iftikhar-u-din Haider Gardezi Vs. Central Bank of India Limited (1996 SCMR 669) has maintained that the term "future date" cannot be determined by a Court unreasonable. This was with reference to Order XLI rule 30 CPC. In the case aforesaid, a judgment pronounced eight months after hearing of arguments was held to be unreasonably delayed and the case the remanded to the High Court for rehearing and re-deciding the matter. We have given our anxious consideration to the involved and also the principle of property and hold that when the delay in pronouncement of judgment is not expected to be unreasonable either in the exercise of original or in appellate jurisdiction, why it should be so allowed and interpreted in of constitutional jurisdiction, especially, when Code of Civil Procedure is held applicable.

 

In the light of above no further factual position is to be taken into account, as there are two mistakes on the part of the appellate court as firstly the order has been passed after a month while gap between two arguments is almost for about six months, which cannot be appreciated in any manner.

In such a situation, the Order of the appellate Court dated 27.5.2008 is set-aside and the appellate Court is directed to re-hear the matter and decide the appeal in the light of above observation within two months.

This Revision Application is disposed of in the above terms.

 

Judge