ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

C. P. No.D-1991 of 2011.

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE.

11.02.2014.

PRESENT:

Mr. Justice Aqeel Ahmed Abbasi,

Mr. Justice Aftab Ahmed Gorar,

1. For Katcha Peshi.

2. For hearing of M. A. No.4034/2013.

3. For hearing of M. A. No.5045/2011.

Petitioner : Sui Southern Gas Company Ltd., through Mr.

Muhammad Hashim Soomro, Advocate.

Respondents : Darya Khan (since deceased), through his legal heirs,

Through Mr. Asif Hussain Chandio, advocate.

O R D E R.

AQEEL AHMED ABBASI, J.- Through instant petition the petitioner company has impugned the order dated 23.6.2010, passed by the learned III-Additional District Judge, Dadu, in Civil Revision Application No.06/2006, whereby the revision filed against the order of the learned Senior Civil Judge, K. N. Shah in F. C. Suit No.209/2000 on an application under Section 151, CPC read with Order 9, Rule 9, CPC, seeking restoration of application filed under Section 12(2), CPC by the petitioner, was dismissed.

2. Brief facts of the case, as stated in the petition and emerged from record, are that the respondents, being aggrieved by an action of the petitioner company for having damaged the property of the respondents and laying Sui Gas line through their property, filed a suit seeking damages and mesne profits against the petitioner company before the Senior Civil Judge, K. N. Shah, District Dadu. Notices were served upon the petitioner, whereafter Vakalatnama was filed on behalf of the petitioner; however, no written statement was filed. Matter was adjourned from time to time, but neither petitioner filed any written statement, nor the matter was contested and the suit was decreed. No appeal was filed against such judgment and decree, instead an application under Section 12(2), CPC was filed, which was also dismissed on account of non-prosecution. The petitioner being aggrieved by such order filed an application under Section 151, CPC read with Order 9, Rule 9, CPC, which was also dismissed. Such dismissal order was assailed by the petitioner by filing Civil Revision No.06/2006 before the learned III-Additional District Judge, Dadu, who vide impugned order dated 23.6.2010 has also dismissed the revision application.

3. Learned Counsel for the petitioner argued that since the matter has not been decided on merits, whereas ex parte judgment and decree have been passed, therefore, the petitioner may be allowed to contest the case on merits and this Court may be pleased to set aside the impugned orders passed by the Courts below with the direction to decide the case afresh on merits. It has been further contended by the learned Counsel that the law supports disposal of the cases on merits instead on technicalities, whereas the petitioner did not damage the property of the respondents and permission was sought from the union of the respondents to lay the Sui Gas line through subject property. It has been prayed that the petition may be allowed and the impugned order may be set aside.

4. Conversely, the learned Counsel appearing for the legal heirs of respondent No.1 has vehemently opposed the contentions as raised by the learned Counsel for the petitioner and has also raised no objection as to the maintainability of the instant petition, on the grounds that neither any jurisdictional error or any illegality has been pointed out by the petitioner in the impugned order, nor any valid ground or reasonable cause has been shown which may require any interference by this Court while exercising its Constitutional jurisdiction. It has been contended by the learned Counsel that the claim of the respondents has been duly adjudicated by the Court of competent jurisdiction, whereas sufficient opportunity was given to the petitioner to contest the case, however they chose to remain absent after having been served, whereas Vakalatnama was also filed on behalf of the petitioner company. Per learned Counsel, number of opportunities were given to the petitioner to appear and to defend their case on merits, however the petitioner in total disregard of such directions of the Court chose not to contest the case on merits and remained absent, whereafter in view of the pleadings and the evidence, which remained undisputed, the judgment and decree were passed in favour of the respondents. Per learned Counsel, no appeal was filed against such judgment and decree, which attained finality, however the petitioner filed an application under Section 12(2), CPC, which was also not proceeded by the petitioner and the same was dismissed on account of non-prosecution, whereafter, another application seeking restoration of such application was filed and the same was also dismissed, as no reasonable cause was shown for non-appearance by the petitioner or his Counsel on the fateful date when such application was dismissed for non-prosecution. Per learned Counsel, instead of having filed an appeal under Order 43, Rule 1(c), CPC, the petitioner chose to file a civil revision before the III-Additional District Judge, Dadu, who after having examined the entire facts of the case vide a detailed order dated 23.6.2010 has rightly dismissed the same. Per learned Counsel, the petitioner throughout has not remained vigilant and not proceeded with the case seriously. Moreover, the petitioner did not have any case on merits, as the fact regarding damage to the property of the respondents could not be denied by the petitioner. Per learned Counsel, the petitioner cannot be extended any benefit of their own wrongs, particularly through instant Constitutional Petition which has limited scope only to the extent to examine as to whether any patent illegality or jurisdictional error has been committed by the learned III-Additional District Judge, Dadu while passing the impugned order. It is contended by the learned Counsel that since no illegality or jurisdictional error has been pointed out by the petitioner in the impugned order or even in the order which was passed by the learned Senior Civil Judge, therefore, instant petition being misconceived in facts and law is liable to be dismissed with costs. It is further contended that the execution proceedings have already been passed, whereas the petitioner has deposited the decreetal amount before this Court, which is not being paid to the respondents on account of pendency of the instant petition, hence causing serious prejudice to the interests of the respondents. It has been prayed that instant petition may be dismissed with costs.

5. We have heard both the learned Counsel and perused the record.

6. The facts as stated hereinabove are not disputed except to the extent of the version of the petitioner that the property of the respondents was not damaged by the petitioner and permission was sought from the Union of the respondents. We are of the view that such contention of the petitioner, which has been disputed by the respondents, cannot be examined at this stage by this Court while exercising Constitutional jurisdiction, whereas all such defence could have been taken by the petitioner before the Court of competent jurisdiction, which opportunity the petitioner has failed to avail without any reasonable explanation. It has also come on record that petitioner was not vigilant in pursuing the legal remedy before the learned Senior Civil Judge, who after having provided sufficient opportunity to the petitioner passed the judgment and decree in favour of the respondents, which was not appealed against by the petitioner. Petitioner chose to file an application under Section 12(2), CPC, which, prima facie, did not contain any valid grounds. However, the same application was also not proceeded diligently by the petitioner, which was also dismissed on account of non-prosecution. Thereafter, an application under Section 151, CPC read with Order 9, Rule 9, CPC, seeking restoration of the application under Section 12(2), CPC was filed, which was also dismissed. The petitioner inspite of having filed an appeal against such order under Order 43, Rule 1(c), CPC, filed civil revision before the learned III-Additional District Judge, Dadu, who after examining the entire facts of the case and the relevant law applicable to the facts of this case vide impugned order dated 23.6.2010 has dismissed the same in the following terms :-

“I have carefully heard the arguments of learned Counsel for both the parties and perused the R& Ps of this Revision Application. The applicant/defendant through this revision application challenged the order of learned Senior Civil Judge, K.N. Shah, dated 14.2.2006, whereby the application u/o 9, rule 9 CPC of the applicant/defendant for restoration of application u/s 12(2), CPC was dismissed. I have perused the affidavit of acting Zonal Manager, applicant/defendant Mr. Bashir Ahmed filed with application u/o 9, rule 9 CPC r/w section 151, CPC which shows that he has mentioned the cause for non-appearance that Mr. Ghulam Muhammad Leghari, Zonal Manager who was appearing in the case had gone to Saudi Arabia on the date when the application was dismissed for non-prosecution and advocate was busy in the Honourable Courts at Dadu, but no affidavit of the said Ghulam Muhammad Leghari, Zonal Manager was filed along with the application nor the affidavit of their advocate was filed along with the application nor the affidavit of their advocate was filed along with the application. Moreover, no reason has been shown by the applicant/defendant that why the case was not proceeded from 13.12.2001 when objections to the application u/s 12(2), CPC were filed by the opponent/plaintiff till 22.12.2005 when application was dismissed in non-prosecution, nor any proof of appearance of advocate for applicant/defendant before Courts at Dadu, on 22.12.2005 has been produced before the trial Court and also no reason has been shown that why the applicant/defendant and his advocate not informed the Court regarding their appearance, therefore, in my view no sufficient grounds/reasons furnished by the applicant/defendant for their non-appearance on 22.12.2005 before the trial Court, when the application u/s 12(2), CPC was dismissed in non-prosecution. The mentioning of dismissal of application u/s 12(2), CPC in the order passed on application u/o 9 rule 9 CPC dated 14.02.2006 again though the application u/s 12(2) CPC was already dismissed for non-prosecution is mere mistake which is curable, and due to only that fact the order passed by the learned trial Court on application u/o 9 rule 9 CPC cannot be set aside when the application does not show sufficient cause for non-appearance of the parties and their advocate before the trial Court. Moreover, the order dismissing the application for restoration is appealable u/o 41, rule 1(c) CPC. Reliance can be placed upon 1986 CLC 1320 relevant page 1324-(a).

In view of the above discussed circumstances I am of the view that the revision application is meritless, not maintainable, therefore, the instant revision application is dismissed with no order as to costs.”

7. The learned Counsel for the petitioner has not been able to point out any error in the impugned order or findings of the learned IIIrd. Additional District Judge, Dadu reproduced hereinabove, nor could satisfy this Court with regard to the non-serious conduct of the petitioner in pursuing the legal remedy before the competent Court throughout proceedings in the instant matter. A party who is not vigilant in pursuing the legal remedy before the competent Court of jurisdiction or choses to file improper proceedings against specific provisions of law, cannot be allowed to get the benefit of such wrong or omissions to the detriment or disadvantage of other party.

8. In view of hereinabove facts, we do not find any error in the impugned order passed by the learned III-Additional District Judge, Dadu, whereas there is no merits in the instant petition, which was accordingly dismissed vide our short order passed in Court in the morning and these are the reasons for such short order.

JUDGE

Qazi Tahir/*