IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Civil Revision No.S-113 of 2022.
[Qadir Bux versus Moula Bux & others]
Civil Revision No.S-156 of 2022.
[Qadir Bux versus Moula Bux& others]
DATE OF HEARING
1. For orders on office objection ‘A’.
2. For hearing of C.M.A.No.652/2022.
3. For hearing of main case.
Mr. Ghayoor Abbas Shahani, Advocate for the Applicant.
Respondent No.1 in person.
Mr. Abdul Waris Bhutto, Assistant Advocate General.
Adnan Iqbal Chaudhry J.- This order is to dispose of the above two revision applications emanating from the same proceedings. Events leading to these revisions are somewhat tumultuous that have unnecessarily consumed Court time.
2. The Applicant of these revision applications [the Plaintiff] filed F.C Suit No.105/2016 which was transferred to V-Additional District Judge Shikarpur [trial court] on a transfer application of the Respondent No.1 [Defendant No.1]. Before the trial court the Plaintiff was delaying evidence. Eventually, on 17.08.2022, while granting adjournment to the Plaintiff, the trial court imposed upon him a cost of Rs.20,000/- with the caution that if he fails to bring his witnesses and lead evidence on the next date the suit would be dismissed for non-prosecution. The Plaintiff challenged the order of cost before this Court by Civil Revision No.113/2022. However, during that revision application when the suit came up before the trial court on 07.09.2022, the trial court dismissed the suit for non-prosecution as the Plaintiff did not deposit the cost nor produced his witnesses to lead evidence.
3. Upon the dismissal of the suit, the Plaintiff moved an application under Order IX Rule 9 CPC before the trial court. However, that application was dismissed by order dated 21.11.2022. The Plaintiff moved another application under Order IX Rule 9 CPC which was dismissed in limine on 15.12.2022 as a second application was not maintainable. Therefore, the Plaintiff has challenged the order dated 21.11.2022 by Civil Revision No.156/2022.
4. Today, learned counsel for the Applicant submits that the case was mishandled before the trial court; that in fact the Applicant could not bring his witnesses for evidence due to the floods; that the Applicant repents; that he is willing to deposit the cost and to lead evidence if one last opportunity is provided. The Respondent No.1 opposes. He submits that after dismissal of the suit, Civil Revision No. 113/2022 has become infructuous, and the subsequent Civil Revision No. 156/2022 does not challenge the suit-dismissal order dated 07.9.2022.
5. The first objection of the Respondent No.1 is correct. Civil Revision No. 113/2022 against the order dated 17.08.2022 has become infructuous after the suit was subsequently dismissed for non-prosecution on 07.09.2022. However, his second objection is incorrect. The certified copy of the application under Order IX Rule 9 CPC, dated 14.09.2022, shows that apart from the order dated 17.08.2022, the application had also prayed for recalling the suit-dismissal order dated 07.09.2022, the latter prayer having been inserted in hand-writing. The order dated 21.11.2022 passed on that application is subject to Civil Revision No.156/2022.
6. The order dated 21.11.2022 shows that the trial court was inclined to recall the suit-dismissal order provided the Plaintiff was ready to deposit the cost and to lead evidence, but since he refused, the application was dismissed. As regards the failure to lead evidence, learned counsel for the Plaintiff/Applicant submits that at that time the Plaintiff’s witnesses were caught up in the flood and thus could not be produced. I accept that as sufficient cause. As regards the refusal to deposit cost, since the Plaintiff is now willing to do so and has repented, I am inclined to give him one more opportunity to lead evidence in the interest of justice.
7. Therefore, Civil Revision No.156/2022 is allowed. The order dated 21.11.2022 is set-aside and the Plaintiff’s application to recall the order dated 07.09.2022 is allowed in terms that the Applicant/Plaintiff shall deposit the cost of Rs. 20,000/- with the trial court and produce his evidence on the next date fixed by the trial court, failing which the trial court may dismiss the suit for want of evidence. As regards Civil Revision No. 113/2022, that is dismissed as infructuous.