ORDER SHEET
IN THE HIGH
COURT OF SINDH BENCH AT SUKKUR
R. A. No. S –188 of 2019
|
Date of hearing |
Order with signature of Judge |
Hearing of cases (Priority)
1. For
hearing of main case
2. For hearing
of CMA No.1059/2019
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07.04.2022
Mr.
Muhammad Asim Malik, Advocate for applicants.
Mr.
Asfandyar Kharal, Assistant Advocate General for Sindh.
………………
None is in attendance on behalf of the
respondents. There is also no intimation although the name of learned counsel
for the respondents has appeared in the daily cause-list. Record reflects that
same was the position on the last date of hearing as well.
Learned counsel for the applicants while referring to the order of previous date, submits that through instant
proceedings the applicants, inter alia,
has called in question the judgment dated 12.09.2019, passed by learned Model
Civil Appellate Court/2nd Additional District Judge, Sukkur, in
Civil Appeal No.90 of 2016 whereby the appeal preferred by the present
applicants has been dismissed.
Briefly, the relevant facts giving rise to the present revision
application is that the applicant against the judgment and decree filed two
applications viz.(i) under Order IX Rule 13 CPC r/w Section 151 CPC seeking
recalling of exparte judgment and decree and (ii) stay application seeking stay
of the proceedings before the executing court. On the said applications notices
were issued and after hearing the parties learned court on 07.09.2016 dismissed
both the applications through separate orders. The present applicant challenged
the order dated 07.09.2016, passed on application under Order IX Rule 13 CPC by
the court of 2nd Additional District Judge, Sukkur, in Civil Appeal
No.90/2016. It has been stated that although the learned lower appellate court
heard the arguments on the order passed on the application under Order IX Rule
13 CPC, however, while passing the order learned Judge considered the facts of
order passed on the stay application instead of application under Order IX Rule
13 CPC.
From perusal of the record, it appears that the present applicant
challenged the order dated 07.09.2016, passed by learned IInd Senior Civil
Judge, Sukkur, in F.C. Suit No.45/2003, whereby learned trial/executing court
dismissed the application under Order IX Rule 13 CPC r/w Section 151 CPC, in
Civil Appeal No.90/2016 before the court of 2nd Additional District
Judge, Sukkur. Upon which notices were issued and arguments of learned counsel
for parties were heard and subsequently, the appeal was dismissed by the
learned lower appellate court, vide its order dated 12.09.2019. Relevant
portion whereof, for ease of reference, is re-produced as under:
“Admittedly,
there is short controversy involved in the proceedings. I have examined the
memo of instant appeal and the memo of stay application moved before the
trial Court and have found that the appellant was unable to show cogent reason
or plausible reason for staying the proceedings before the trial Court. In the
similar context neither any objection were filed by the appellant on the
execution application before the trial Court nor has challenged the judgment
and decree before appellate authority. In such an event to seek stay the execution application by the appellant before trial
Court appears to be a tool to linger on the pending proceedings on the basis of
unfounded application. The learned trial Court was correct in holding that the
application if granted will expose the decree holder/respondent to mental agony
and will cause delay in conclusion of execution proceedings. In these
circumstances as discussed above, I find myself in total agreement with the
findings of learned trial Court delivered in the impugned order, hence impugned
order stands maintained and as a natural corollary instant civil appeal in hand
is dismissed with no order as to costs.
Needless
to mention that all the pending interlocutory applications, if any becomes
infructuous with the result of the instant civil appeal.
Accordingly,
instant appeal is disposed of in the above terms”.
[Emphasis supplied]
From perusal of the impugned
judgment, it appears that although in the judgment, the order passed on the
application, under Order IX Rule 13 CPC, was referred, however, the findings
have been given on the order, passed on the stay application instead of application
under Order IX Rule 13 CPC, such facts alone renders the impugned judgment a
nullity. In the circumstances, the judgment
dated 12.09.2019, passed by learned Model Civil Appellate Court/2nd
Additional District Judge, Sukkur, in Civil Appeal No.90 of 2016 is set-aside. The case
is remanded back to the learned lower appellate court to decide it afresh after
providing adequate opportunities of hearing to both the parties. The matter be
decided expeditiously, preferably within two months’ time from the date of communication
of this order.
Revision stands disposed of in the above terms
J U D G E
Ihsan