IN THE HIGH COURT OF SINDH, SUKKUR BENCH, SUKKUR

 

R.A. No.S-43 of 2015

 

 

Applicants:                                        Ghulam Mustafa Khan and another through Mr. Muhammad Rehan Khan Durrani, Advocate

 

Respondents 1 & 2:                           Ali Sher and another through Syed Zafar Ali Shah, Advocate

 

State:                                                 Province of Sindh and others through Mr. Asfand Yar Kharal, AAG

Date of hearing:                                 18.10.2021

Date of decision:                                26.11.2021 

 

O R D E R

 

Zulfiqar Ali Sangi, J:              Being aggrieved and dissatisfied with the impugned judgment and decree dated 10.04.2015 & 13.04.2015, respectively, passed by learned District Judge, Sukkur, in Civil Appeal No.42/2012 (re-Ghulam Mustafa Khan and another vs. Ali Sher and others) so also order dated 18.09.2014 passed by learned 2nd Senior Civil Judge, Sukkur, on an application filed under Order 9 Rule 9 CPC for restoration of Civil Suit No.155/2008, filed by the present applicants, was dismissed, hence this Revision Application. 

 

 2.                Succinct facts of the case as averred in the memo of captioned revision application are that applicants filed F.C. Suit No.155/2008 for declaration, mandatory and permanent injunction against the Respondents No.1 to 7 before the Court of learned 2nd Senior Civil Judge, Sukkur stating therein that they are owners in possession of Revenue Survey Nos.588 (5-31), 589 (2-09), 590 (4-00) total measuring 12 acres, situated in deh Malaho, Tapo Malaho, Taluka Salehpat, District Sukkur, purchased vide registered sale deed No.2375 dated 19.11.2008 registered with Sub-Registrar, Rohri; that such record of rights has also been mutated in their favour by the Mukhtiarkar (Revenue) Salehpat, vide Entry No.174 dated 28.11.2008; it is further asserted in the plaint by the applicants that they have purchased the said land from Respondent No.1, who was the original grantee of the subject land made in his favour in the year, 1998-99 out of U.A. No.15 thereafter, after survey, the above said survey numbers were assigned by the Mukhtiarkar Estate and Headquarters as well as Survey office and the record of rights in respect of the suit property was mutated in favour of Respondent No.1 vide entry dated 28.10.2008; that after verification of the documents, applicant purchased the land through registered sale deed and the said registered sale deed is still intact and has never been called into question from any corner; that the Respondent No.1 with malafide intentions and ulterior motives wanted to back out from the sale deed duly executed in favour of plaintiffs/applicants hence in order to achieve his ulterior designs, he has also instigated Respondent No.2 to take back the forcible possession of the land in question from the applicants and have moved a false application before the Respondent No.5 thereby attempted to deprive the applicants from their legal and lawful right acquired by way of registered sale deed for value and whereas the respondent No.5 without considering the actual facts as to change the status of the suit property; that the applicants are entitled for the protection of law as to their legal and fundamental rights duly acquired through a very lawful mode and peaceful manner and any attempt to deprive them from their said legal rights at the hands of Respondents No.1, 2 & 5 is illegal, unlawful without any lawful authority and corrum-non-judice, based upon malafide and ulterior motives, whereas the cause of action for filing the suit accrued to the applicants on 07.12.2009 when they were accused in a false FIR, lodged at the whims and wishes of Respondents No.1, 2 & 5 thereby the police got the applicants arrested and threatened them to vacate the possession of the suit property.

 

3.                 Learned Counsel representing the Applicants, at the very outset, submitted that the impugned judgment, decree as well as orders passed by Courts below are illegal, against the principle of law, without lawful authority and are not sustainable in law; that the learned lower Courts did not apply their judicious mind while passing impugned judgment and decree as well as order for dismissing the suit for non-prosecution; that the very order of dismissing the suit is illegal and unlawful as such there was neither any legal order so as to attract the penal provisions of dismissal of whole suit resultantly committed serious miscarriage of justice; that the suit should not have been dismissed for non-prosecution hence subsequent series of orders based on such illegal order are bad in law, illegal and void ab-initio; that by dismissing the restoration application under Order 9 Rule 9 r/w Section 151 CPC, the learned trial Court had violated the principles of natural justice inasmuch as the applicants have been condemned unheard and have been deprived of their legal right; hence all orders passed arising from basic order for dismissal of suit are illegal, unlawful and void ab-initio; Lastly, learned counsel submit he is ready to pay some reasonable cost for restoration of suit as valuable rights of applicants are involved in the suit and that this revision application may be allowed as prayed.

 

4.                 Learned Counsel for the Respondents No.1 & 2, at the very outset, submits that the learned trial Court has rightly dismissed the suit of Applicants for non-prosecution as the Counsel representing the Applicants had chosen to remain absent; that the issues in the Applicants’/Plaintiffs’ suit were framed on 08.05.2010 and thereafter the matter was being adjourned due to absence of plaintiffs side and was granted adjournments constantly; however they failed to proceed with the matter, hence suit was dismissed for non-prosecution. Insofar as the application under Order 9 Rule 9 r/w Section 151 CPC filed for restoration of suit, the learned trial Court has rightly observed that no any cogent and satisfactory reasons have been mentioned by the Applicants in their application for restoration nor they had produced any proof or copy of court diary to show their preoccupation before another Court; besides applicants/plaintiffs were also not present on the date of dismissal of suit, hence averments/pleas mentioned in the instant revision application do not require consideration and Revision Application is liable to be dismissed. However, learned counsel for the respondents conceded for allowing this application if the heavy cost be imposed upon the applicants and some reasonable time be granted to trial court for disposal of the suit being old one.

    

5.                 Learned AAG representing the State contended that the dispute is in between the private parties and the state has no concerned with the property in question.

 

6.                 I have heard learned counsel for the parties and have gone through the material available on the record with their able assistance.

 

7.                 Admittedly the suit of the applicants was fixed for the evidence of plaintiff side on the date when it was dismissed for non prosecution. It appears from the impugned order that the issues were framed on 8.5.2010, the dismissal order was passed on 19-08-2010, which reads as under:-

“Matter called, both parties are absent except Junior partner of learned counsel for the plaintiff, as well as counsel for the defendant No. 2, it is fixed for plaintiff evidence, record reflects that issues were framed on 8.5.2010, since then the plaintiff party has failed to adduce evidence, even unless last hearing adjournment application was sent by the learned counsel through his junior, it was observed while passing the order on application that party was absent, however, in the interest of justice with last and final chance adjournment was allowed, but today position is same, as neither party nor witnesses have eared to appear, even junior partner of learned counsel for the plaintiff is not in possession of any adjournment application, it shows lake of interest from the plaintiff side, thus looking to the other alternate, suit of the plaintiff stands dismissed, in default for non prosecution with no order as to the cast.”

 

From perusal of the above order it reflects that both the parties were absent on the date when the suit was fixed for the evidence of plaintiff side, and only juniors of the counsel for the parties were present. Learned counsel though submitted that the witnesses were available outside of the court but no evidence in this respect has been submitted. It is further observed that both the court below declined restoration one of the ground amongst others that the counsel for the applicants not produced any case dairy in respect that he was busy before another court on the day of hearing. Today learned counsel for the applicants produce certified true copy of case dairy dated: 19-08-2010, which reflects that the counsel was busy before 3rd Additional District Judge in Civil Appeal No. 39 of 2007 and partly the arguments were heard by the said court.

 

8.                 In the present case, suit was dismissed for non prosecution only after the three months of the framing of the issues and no warning was issued to the applicants that in case they not produced the evidence penal action would be taken. In the cases where the suits were dismissed for non appearance of the plaintiffs then there be sufficient cause for personal non-appearance of the plaintiff that is a good ground for restoration of suit even though it may have been possible for a plaintiff to make arrange­ments for appearance through somebody else for no party to a suit is under any obligation to engage counsel. The suits can be restored in cases where there was sufficient cause for personal non-appearance of a party even though a counsel for the party was negligent in appearance. In the present case junior advocates for both the parties were present and it was/is claimed by the counsel for the applicants that the witnesses were present outside of the court and were waiting for their counsel and this was the ground that the junior advocate even not filed adjournment application and was in apprehension that his senior will come and proceed with matter as the witnesses were available with him but the suit was dismissed.

 

9.                The general policy of the law leans in favour of adjudication on merits and dismissal in default should serve as an exception to this general rule of law. A litigant, who comes to Court to seek justice, must not be denied the same by Court (s) unless there are insuperable legal hurdles in its way to dispense justice for which purpose it alone exists. The consistent rule is that in the matter of restoration generous consideration should weigh with the court and every possible attempt shall be made to allow the parties opportunity of producing evidence and seeking decision on merits.

 

10.               It is also necessary to mention here that after the serious objections raised by the learned counsel for the defendants he conceded for restoration of the suit of applicants subject to the cost. Since the valuable rights of the applicants are involved in the case therefore in the interest of justice this Revision Application is allowed. The impugned judgment and decree dated 10.04.2015 & 13.04.2015, respectively, passed by learned District Judge, Sukkur, in Civil Appeal No.42/2012, so also order dated 18.09.2014 passed by learned 2nd Senior Civil Judge, Sukkur, on an application filed under Order 9 Rule 9 CPC for restoration of Civil Suit No.155/2008 and the original order dated: 19-08-2010 passed by learned 2nd Senior Civil Judge, Sukkur, in Civil Suit No.155/2008 are set-aside the Civil Suit No.155/2008 is restored on its original position as it was before 19-08-2010 subject to the cost of Rs. 10000/= (Ten Thousands). It is observed that about ten years are passed only for seeking restoration of the above suit and the suit was filed in the year 2008; therefore the trial court is directed to conclude the trial within four month after receipt of this order.  The applicants are directed to produce evidence/witnesses before the trial court on 02-12-2021 without fail.

 

11.              The above Revision Application is disposed of in the above terms.

 

 

J U D G E