Order Sheet

IN THE HIGH COURT OF SINDH AT KARACHI

Misc. Appeal No.13 of 2018

Date	Order with signature of Judge

For hearing of Main Case :

30.04.2019 :      Mr. Asadullah Memon, advocate for the appellant.

                            None present for the respondents.

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NADEEM AKHTAR, J. – F. C. Suit No.65/2013 was filed by the appellants against the respondents for declaration, possession and permanent injunction, plaint whereof was rejected by the learned trial Court vide order dated 30.11.2013. Civil Appeal No.29/2016 filed by the appellants against the order of rejection of their plaint was dismissed by the learned appellate Court for non-prosecution vide order dated 17.11.2017. Thereafter, the application filed by the appellants for restoration of their appeal was dismissed by the learned appellate Court through the impugned order dated 27.03.2018.

            Perusal of order dated 17.11.2017 passed by the learned appellate Court shows that the appellants’ appeal was dismissed for non-prosecution on the ground that they had not taken interest on the last several dates and had failed to argue the appeal. It is contended that this observation of the learned appellate Court was not correct and in support of this contention, the appellants have filed certified copy of the complete diary sheet. Perusal of the diary sheet shows that on the immediately preceding date viz. 23.10.2017 the matter was adjourned at the request of respondent No.1 Ghulam Nabi ; on 09.09.2017, the matter was adjourned as a counsel had filed power on behalf of the respondents ; on 19.08.2017 and 14.07.2017, the matter was adjourned at the request of respondent No.1 Ghulam Nabi ; on 28.07.2017, the matter was adjourned with the consent of the parties ; and, on 19.05.2017, arguments of both the sides were partly heard. Record further shows that counsel for the appellants was present on all dates of hearing except 15.05.2017. In the above circumstances, observation of the learned appellate Court that appellants were not taking interest in their appeal, was contrary to the record, and as such the appeal ought to have been restored by the learned appellate Court.

Learned counsel for the appellants submits that the appellants never tried to delay the matter and they are still ready and willing for early hearing and disposal of their appeal. No one is present on behalf of private respondents to assist the Court although they are being represented by a counsel.

In view of the above, impugned orders dated 17.11.2017 and 27.03.2018 passed by the learned appellate Court are hereby set aside and resultantly Civil Appeal No.29/2016 filed by the appellants is restored to its original position for decision on merits. Learned appellate Court is directed to decide the appeal within thirty (30) days from receipt of this order strictly in accordance with law. This appeal is allowed in the above terms with no order as to costs.

     J U D G E