ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Civil R.A. No.174 of 2010
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Order with signature of Judge
Present: Mr.Justice Muhammad Ali Mazhar.
Pakistan National Shipping
Corporation ……………………………….………….Applicant
Versus
Seaward Surveyors………………….…………..Respondent
Date of hearing 06.08.2014
Mr.Waqar Muhammad Khan, Advocate for the Applicant.
Mr.Muhammad Imran, Advocate for the Respondent
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Muhammad Ali Mazhar, J. This Revision Application has been preferred to challenge the impugned order dated 5.5.2010, passed by the IIIrd learned Additional District & Session Judge, Karachi (South) in Civil Appeal No.147 of 2008.
2. The brief facts of the case are that the applicant filed a civil Suit No.234/2005 in the civil court for the recovery of differential amount of increased rent in the sum of Rs.6,45,479.44/-. The respondent filed the written statement however, vide judgment dated 29.10.2008 the suit was dismissed under Order 17 Rule 3 CPC. The learned trial court observed in the judgment that issues were framed in the month of August, 2006 and despite opportunities given in the interest of justice, the plaintiff failed to attend the court for last many dates, hence the judgment was passed under Order 17 Rule 3 CPC as the plaintiff failed to adduce any evidence in the matter. The judgment of the civil court was challenged in Civil Appeal No.147/2008, which was dismissed for non-prosecution on 31.10.2009. The order of the learned Appellate Court is reproduced as under:-
“Case called repeatedly but appellant and his counsel is absent. From the perusal of the diary shows that since 3.8.2009 to 31.10.2009 this case is fixed 5 dates of hearings but none of the date the appellant and his counsel is present. Today it is now 2:15 P.M. it remained same position. Under the circumstances it appears that the appellant has lost his interest in the matter. Therefore, this civil appeal is dismissed for non-prosecution.”
3. After dismissal of the appeal on 31.10.2009, the appellant applied for the restoration under Order 9 Rule 9 C.P.C on 25.11.2009. The application was supported by personal affidavit of Abdul Waheed Chandio, Advocate. In paragraph 3 of the affidavit it was mentioned that senior counsel was appointed DPG and due to rush of work the matter was oversight. It was further contended that after Eid, the advocate became ill and his condition was so critical. This application was also dismissed on 5.5.2010 on the ground that since 3.8.2009 nobody was in attendance on behalf of the appellant and so far as the ground of illness was concerned nothing was produced before the appellate court to show that the counsel for the applicant was ill or unwell.
4. The learned counsel for the applicant argued that despite showing specific cause for non-appearance the learned appellate court failed to consider the restoration application. He further argued that due to illness, the counsel could not appear before the appellate court which was beyond his control. It was further averred that the ground of illness shown in the affidavit was sufficient and there was no necessity to file medical certificate. He further argued that the appeal should have been decided on merits and not on technical grounds. The applicant had made out the case for restoration but the appellate court failed to consider the application and dismiss the same arbitrarily. In support of his contention, he referred to the case reported in NLR 2002 Civil 663 (Muhammad Faisal v. Muhammad Iqbal) in which the suit was dismissed for non-prosecution but it was restored with the observation that law favors adjudication of disputes on merits. The Advocate took the plea that he was busy before another bench of this court and learned Single Judge of this court observed that there was no dispute that the counsel for the plaintiff was not busy on the relevant date before other bench. He then referred to 2003 SCMR 83 (Muhammad Bashir & another v. Province of Punjab & others). In this case, the Lahore High Court allowed the condonation of delay of 26 days which was challenged in the hon’ble Supreme Court but the hon’ble Supreme Court held that the High Court was fully satisfied with the sufficiency of cause shown by the respondents for condonation of delay for vital and sound reasons. It was further held that public functionaries are not entitled to any preferential treatment in the matter of condonation of delay and they are to be treated on equal footing with an ordinary litigant. With the passage of time valuable rights accrues in favour of opposite party which should not be lightly disturbed and destroyed. He then referred to 2010 SCMR 973 (Anwar Khan v. Fazal Manan) in which the hon’ble Supreme Court held that the law favors adjudication on merits and this principle is to be followed unless there are practical difficulties, which cannot be surmounted. The principal object of legal formalities and procedural provisions is to safeguard the interest of justice and the procedural provisions unless insurmountable should not be allowed to defeat the ends of justice. Civil courts are courts of both law and equity and the in the absence of special reasons, they should also be inclined to do substantial justice and matters of controversy should also be disposed of on merits and not on technical consideration. This is always more important in cases where there is apprehension that the parties concerned shall be seriously prejudiced if the application or suit is not restored.
5. On the other hand, the learned counsel for the respondent argued that no plausible and cogent reason had been shown in the restoration application. No medical certificate was attached with the restoration application. He further argued that even in the trial court the plaintiff failed to adduce evidence and the matter was decided under Order 17 Rule 3 CPC. In the appellate court at least for five dates, the counsel for the appellant failed to appear thereafter the appeal was dismissed. It was further contended that the applicant failed to point out any material irregularity or illegality in the impugned order. The suit filed by the appellant was also hit by Section 11 CPC as the same relief was claimed in the Rent Case No.790/2004 in which the Rent Controller was pleased to decline the prayer for differential of the rent amount but no appeal was filed against that order. Issues were framed on 15.8.2006 and since then the matter was fixed for the plaintiff’s evidence but they failed to proceed and ultimately the suit was dismissed. He further argued that no public revenue is involved in this case even the suit filed for the recovery of alleged dues was hopelessly time barred.
6. Heard the arguments. The language used under Section 115 of CPC unequivocally envisions that the civil revision only lies where the impugned order amounts to a case decided which has been passed by any court subordinate to High Court and such order is not an appealable order. It is also necessary that there must be allegation of jurisdictional error such as exercise of jurisdiction not vested in the court below or a jurisdiction vested in it by law was failed to be exercised and or the court has acted in exercise of its jurisdiction illegally with material irregularity. This section consists of two parts, the first part prescribes the condition in which the High Court can exercise the jurisdiction to correct the error in the case decided by its subordinate courts against which no appeal lies while the latter part prescribes and stipulates the circumstances in which the revisional jurisdiction may be exercised by the High Court. It is also well known that while exercising the revisional jurisdiction under Section 115 CPC, the powers of the court are very limited and narrow. This Section is enacted to correct certain clauses of errors of jurisdiction committed by the subordinate courts. When the High Court is satisfied that the subordinate court has committed illegality or material irregularity then this court can interfere with the decision but in exercise of revisional jurisdiction cannot attack the finding of facts of the subordinate.
7. What happened in the case in hand that application for restoration was filed under Order 9 Rule 9 C.P.C. Though the proper procedure for re-admission of appeal dismissed for default is provided under Order 41 Rule 19 CPC which postulates that where an appeal is dismissed under Rule 11, sub-rule (2) or Rule 17 or Rule 18, the appellant may apply to the appellate court for re-admission of the appeal where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called for hearing the court may re-admit the appeal on such terms as it thinks fit. Under sub-rule (2) of Rule 11, it is provided that if on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called for hearing the court may make an order that appeal be dismissed, while Rule 17 of Order 41 pertains to the dismissal of appeal due to appellant’s default. Instead of applying the restoration in the correct provision of law, the appellant applied for the restoration of appeal in the appellate court under Order 9 Rule 9 read with Section 151 CPC. Nevertheless, it is also well settled proposition of law that filing application under the wrong provision of law or with wrong nomenclature does not mean to dismiss the application or discard it without lawful consideration but on the contrary what matters is the pith and substance of the application and the relief claimed therein. whether the application is moved under Order 9 Rule 9 CPC for restoration of suit or the application filed under Rule 19 or Order 41 CPC which is meant for readmission of appeal dismissed in default at least one thing is common that for the restoration of suit and or re-admission of appeal it is necessary to show the sufficient cause for the previous non-appearance when the suit or the appeal was dismissed in default. So in this revision application also the core issue is to decide whether the applicant shown any sufficient cause before the appellate court for restoration of appeal and what material irregularity or illegality has been committed by the appellate court while dismissing the restoration application. The hon’ble Supreme Court in the case of Muhammad Bashir (supra) held that Revisional jurisdiction of High Court is always discretionary and equitable in nature and no party is entitled to it as of right. Object of superior Courts while exercising its discretionary jurisdiction is to foster the ends of justice, preserve the rights of parties and to right a wrong and, keeping the object in view, it may in equity, set aside or annul a void judgment of declined to enforce it by refusing to intervene in the circumstances of the case.
8. What transpired to me from the impugned order that it was not the first time that the appellant failed to appear but the order dismissing the appeal clearly shows that since 3.8.2009 to 31.10.2009 the case was fixed on five dates, but nobody appeared for the appellant. The conduct and demeanor of the appellant is self-explanatory and self-evident that at least for five days a callous or reckless behavior was shown and the appeal was left unattended at the mercy of the court. In the restoration application though a plea of illness was taken but no medical certificate was produced to substantiate this ground. It was the responsibility of the appellant’s counsel to prove the sufficient cause of previous non-appearance and come up with some cogent prove of his illness. It was not the obligation of the appellate court to call upon the learned counsel to submit the medical certificate. The sufficient cause of his illness if any was to be proved by the appellant’s counsel who was bound to apply restoration with due care and caution specially keeping in view the circumstances when the appellate court in the impugned order already observed that at least for last five dates nobody appeared for the appellant to proceed the appeal.
9. To me neither any case is made out in which the appellate court exercise the jurisdiction not vested in it nor committed any failure to exercise a jurisdiction so vested nor the counsel for the applicant succeeded to demonstrate while dismissing the restoration application, the learned appellate court exercised its jurisdiction illegally or with material irregularity. The case law cited by the learned counsel were considered but found distinguishable. No doubt the law favours adjudication on merits but simultaneously, one should not close his eyes or oversight another fragment of great consequence that law helps vigilant and not the indolent. The provisions warranting the dismissal of suit or appeal for non-prosecution may be invoked by the courts and restoration may be also be ordered, provided, a sufficient cause is shown to the court for non-appearance which is lacking and missing in this case.
10. As a result of above discussion, this revision application is dismissed in limine.
Judge