ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

C.P No.D- 511 of 2009.

DATE ORDER WITH SIGNATURE OF JUDGE

For Katcha Peshi.

06.04.2010.

Mr. Raja Khan, Advocate for petitioner.

Mr. Naimatullah Soomro, Advocate for respondent No.1.

Mr. Muhammad Aslam Sipio, State Counsel.

Through this petition, the petitioner has called in question judgment dated 16^th April 2009 passed in Civil Revision No.26 of 2008, whereby the restoration of Suit No.58 of 2006 was declined.

Counsel for the petitioner contends that petitioner had filed a Suit bearing No.58/2006 for declaration and injunction. The defendants were served who filed their written statement and thereafter issues were framed on 29^th August 2006 and the case was posted for the evidence of petitioner. However in the meanwhile, the petitioner was taken away by M.I on 22^nd June 2006 and kept at different places and thereafter, he was confined in Central Prison Hyderabad where inside Court trial was notified on 8.8.2007. Ultimately, the petitioner was released on 24.6.2009 and in the meanwhile, his suit was dismissed on account of non-prosecution. The restoration application was also dismissed on account of non-prosecution. His father filed a Civil Revision which was also dismissed through impugned judgment. Per learned counsel, since the petitioner was behind the bars and it was beyond his control to affect his appearance before the Court in order to prosecute the said Suit therefore, the impugned judgment whereby his request to restore the suit was declined is not in accordance with the principle settled by the Superior Courts, directing adjudication on merits.

On the other hand, Mr. Naimatullah Soomro, learned counsel appearing for respondent No.1 contends that various opportunities were provided to the petitioner but he failed to avail. He further states that restoration application was filed on 20^th December 2006 after dismissal of the suit on 12^th December 2006 on account of non-prosecution, wherein he had endorsed his no objection on behalf of the respondent for restoration of the suit despite such opportunity, the petitioner had not appeared and restoration application was also dismissed on account of non-prosecution on 25^th April 2007. A fresh application in the meanwhile was also filed on 28^th April 2007 which also met the same fate on 19^th May 2007. Per learned counsel, the restoration was rightly declined.

We have heard learned counsel for the respective parties and perused the record. The position that the petitioner was arrested on 22^nd June 2006 and released on 24.6.2009 remains undisputed. It appears that there was sufficient cause which prevented the petitioner to appear and prosecute the Suit bearing No.58 of 2006 therefore, we are of the view that both the Courts below did not exercise discretionary jurisdiction in accordance with the principle settled by the Superior Courts requiring adjudication of cases on merits. We, consequently set aside both the orders and restore the Suit No.58 of 2006 to its original position and direct the trial Court to conclude the trial within three months. The petitioner present is directed to appear before the trial Court on 19.4.2010 and adduce the evidence. At this juncture, Mr. Naimatullah Soomro, learned counsel for respondent No.1 has pointed out that Senior Civil Judge before whom the case was pending has been promoted and transferred. We consequently direct the District Judge, Hyderabad to ensure that the file of Suit No.58 of 2006 is transferred to any other Senior Civil Judge and to ensure that the suit is decided within three months.

The petition stands disposed of in the above terms.

JUDGE

Tufail