ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Suit No.81 of 2004

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DATE                  ORDER WITH SIGNATURES OF JUDGE(S)

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For hearing of CMA 2691/11

Dated: 03.09.2018

Mr. Usmain Tufail Shaikh for plaintiff.

None for defendants.

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Through this application a prayer is made for recalling this Court’s order dated 24.01.2011 on which date on the statement of learned counsel for the plaintiff that he did not wish to press the suit, the same was dismissed as withdrawn. The said request of the counsel was made on an application moved by the counsel bearing CMA No.656/2011. Interesting to note is that no affidavit in support of the said application is on file. Per counsel as soon as applicant/plaintiff became aware of this order, he moved application for certified copy of the same on 09.02.2011, which was handed down to him on the same day. Thereafter the instant application for restoration was moved on 12.03.2011.

Learned counsel for the applicant has raised a number of points of which the prominent being that the plaintiffs are illiterate persons and they were not aware of the statutory deadlines, therefore, the delay in filing the application is to be condoned in the interest of justice as valuable property rights are at stake. He submitted that earlier counsel who moved the application under order 23 rule 1 CPC did so on his own motion and which fact could be ascertained from the review of the application, which is not supported by affidavit of any of the parties. It is also stated that the earlier counsel had lost contact with the plaintiffs who were duly represented by attorneys, namely Lal Bux and Unnar Bux who in fact died before making the said Order XXIII rule 1 application, therefore, when he moved to have this suit as not pressed, the counsel had no contact with the plaintiff and the best option available to the counsel was to make request for withdrawal of his Vakalatnama rather than withdrawing the instant suit.

Despite having filed this restoration application in the year 2011 no counter-affidavit has been filed by any of the defendants and the only objection has come forward from earlier counsel whose contentions are stated hereinabove.

In the circumstances at hand, I am satisfied that valuable property rights of the parties require adjudication of the same by this Court and the parties cannot be let to lose their valuable rights merely on the fault of their counsel who made withdrawal application without parties’ consent or knowledge. I, therefore, allow this application and relegate the suit at the stage from which it was unauthorizedly stated to have been withdrawn. Let notices of the suit be sent directly to the defendants with intimation to their counsel for the next date of hearing.

                                                                                    J U D G E