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