IN THE HIGH COURT OF SINDH, KARACHI

High Court Appeal No.334 of 2024

[ Dr. Syed Misbah uz Zafar & others v. Mst. Rohana & others ]

PRESENT:

            Mr. Justice Arshad Hussain Khan

                                                       Mr. Justice Amjad Ali Sahito                     

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Appellants                             Through Mr. Khalid Nawaz Khan Marwat,

Advocate.

Respondent No.1                  Through Mr. Farhatullah, Advocate.

Respondent No.2.                 Through Bushra Salahuddin, Advocate.  

Date of hearing                     30.04.2026

Date of Decision                  30.04.2026

O R D E R

ARSHAD HUSSAIN KHAN, J:                The Appellant has filed the instant High Court Appeal against order dated 08.08.2024 whereby his restoration application in Suit No.924 of 2005 under order IX Rule 9 of CPC read with Section 151 of CPC, was dismissed.

2.         Learned counsel for the appellants has primarily contended that once a suit has reached the stage of final arguments, it ought not to be dismissed for non-prosecution; rather, the lis should be decided on merits, particularly when the evidence of both parties already stands recorded. He further argued that the Court should not be influenced by prior instances of default or conduct of the parties, and that the matter ought to be decided solely with reference to the circumstances prevailing on the particular date of hearing.

3.         Learned counsel for respondent No.1, while opposing the stance of the appellants, has contended that the matter has remained pending for over eleven years and that the appellants have consistently failed to proceed with the case without any justifiable cause, despite being afforded repeated opportunities. It was thus urged that the learned trial Court rightly exercised its discretion in dismissing the suit for non-prosecution.

4.         We have heard the learned counsel for the parties and have perused the material available on record with their assistance. The learned Single Judge dismissed the suit on 06.10.2020, whereafter the appellants filed the underlying application for restoration of the suit, which too came to be dismissed vide the impugned order. It is pertinent to observe that the learned Single Judge has assigned cogent and comprehensive reasons, which, in our view, have not been effectively controverted by the appellants. The explanation furnished by learned counsel for the appellants, as reflected in the accompanying affidavit, that he was engaged before another Divisional Bench of this Court and, therefore, could not attend the proceedings in time, does not constitute sufficient cause for non-appearance, particularly in a matter which had remained pending for over a decade. Moreover, we find that the learned Single Judge has rightly concluded that the appellants failed to provide any satisfactory justification for their absence and, more importantly, for his non-appearance and lack of intent to proceed in the Suit.

5.         We are unable to agree with the appellants’ initial contention that a suit, once it has reached the stage of final arguments, cannot be dismissed for non-prosecution, as the same cannot be treated as an absolute proposition of law. It is a settled principle that, in cases of dismissal for non-prosecution, the party seeking restoration must demonstrate “sufficient cause,” which, as already observed, has been duly examined and negatived by the learned Single Judge in the impugned order.

6.         Furthermore, the legal contentions raised by learned counsel for the appellants, particularly that a suit cannot be dismissed for non-prosecution at the stage of final arguments, along with other allied submissions, have already been considered and repelled by this Court vide order dated 30.01.2025 passed in an unreported case of Sahibzada Khan v. Juma Khan (HCA No.103 of 2024).

7.         In view of the foregoing, while we are of the considered opinion that, in law, the learned Single Judge was well within jurisdiction to dismiss the suit for non-prosecution, even at the stage of final arguments, as was done in the present case, yet, in the interest of justice and to ensure that the matter is decided after a full and proper adjudication, as pleaded by the appellants, we deem it appropriate to allow the instant appeal to a limited extent.

Accordingly, the suit is restored to its original position, subject to the appellants depositing a sum of Rs.2,50,000/- (Rupees Two Lac Fifty Thousand only) with the High Court Clinic within twenty (20) days from the date of this order. The learned trial Court is directed to proceed with the matter and decide the same on merits, after affording a fair and meaningful opportunity of hearing to all concerned, preferably within a period of sixty (60) days from the date of receipt of a copy of this order.

It is, however, clarified that the restoration of the suit is strictly conditional upon payment of the aforesaid costs; in the event of failure on the part of the appellants to deposit the said amount within the stipulated period, this appeal shall stand dismissed without further reference to the Court.

This Appeal stands disposed off alongwith pending application.

JUDGE

JUDGE

Naveed PA