ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI.

R.A. No.6 of 2017

Date	Order with signature of Judge

1. For order on CMA No.1772/2017.

2. For order on office objection.

3. For hearing of main Case.

4. For hearing of CMA No.505/2017.

28.02.2017.

Mr. Ghulam Shabir Babar Advocate for the applicants.

Ms. Khalida Nusrat Advocate for the respondents.

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Applicants have filed this civil revision application against the impugned order dated 12.01.2017 whereby their application U/O 9 Rule 9 CPC r/w order XLI Rule 19 and section 151 CPC filed for restoration of Civil Appeal No.53/2014 was dismissed. The said appeal was filed against the Judgment and Decree dated 26.03.2014 in Civil Suit No.489/2012 for Administration, Partition, Recovery and Permanent Injunction instituted against the applicants by the respondents. The said appeal was dismissed in non-prosecution on 20.09.2016 against which the applicants had filed above stated application for its restoration.

The case of the applicants here is that due to negligence of their advocate, who could not argue their case at the relevant time, and since they were not required to attend the court on each and every date of hearing, they too were absent on the relevant date, the appeal was dismissed in non-prosecution.

Mr. Ghulam Shabir Babar, counsel for the applicants, has argued that it has been a constant view of the superior courts that the matters shall be decided on merits rather than on technicalities but in the present case, the appeal of the applicants was dismissed in non-prosecution and subsequently the application for restoration of the same was also dismissed by the appellate court without attending to the said principle of law. According to him, if the impugned order is allowed to sustain, it would amount to denial of the said cardinal principle of law. Learned counsel further states that if the impugned order is set-aside and the appeal is restored to its original position, he would undertake to argue the appeal on merits within 15 days and meanwhile would not take any adjournment on any of the grounds. He has relied upon 1994 MLD 1463 in support of his arguments.

Learned counsel for the respondents has opposed this application and restoration of the appeal, but at the same time she maintains that if the directions are issued to the appellate court to decide the appeal on merits within a certain period and some cost is imposed on the applicants; she would have no objection.

I have heard the counsel for the parties and perused the material available on record. Admittedly, the applicants have not cited any cogent ground for allowing this application and restoring the appeal to its original position. The failure of their counsel to argue the appeal on their behalf on the relevant date is in fact their own failure to pursue the matter diligently. However, keeping in mind the basic principal of law that the matters shall be decided on merits rather than on technicalities; and the proposition that insufficiency of grounds taken in the application for restoration would not pose any insurmountable obstacle to the court to restore the matter to its original position for decision on merits, I am of the view that if the application in hand is allowed and the appeal is restored to its original position subject to payment of cost of Rs.30,000/- to be paid by the applicants to the respondents, and with directions to the appellate court to decide the said appeal within 15 days, it would not prejudice the case of either party on merits before the appellate court. Consequently this civil revision application is allowed in the terms as stated above. Listed applications are also disposed of accordingly.

    JUDGE

A.K.