IN THE HIGH COURT OF SINDH
AT LARKANA
CivilR. A. S-30of 2018 : S.S.G.C &Another vs.
Dilip Kumar
For the Applicant : Mr. Bashir Ahmed Dargahi, Advocate
For the Respondent : Mr. Muhammad Qasim Khan Advocate
Date of hearing : 10.02.2022
Date of order : 10.02.2022
ORDER
Agha Faisal, J.The underlyingsuit, filed by the respondent, was decreed vide Judgment dated 14.02.2017 by the learned Senior Civil Judge, Kandhkot. The appeal there against was dismissed vide order dated 23.10.2017, on account of non-prosecution. The operative content is reproduced hereinbelow:
“The Civil appeal is called. Appellants and their counsel called absent without any intimation. From the perusal of record, it reveals that since the date of hearings viz. 16.09.2017, 28.09.2017 & 09.10.2017, the appellants and their counsel was also absent without intimation, hence, it appears that the appellants has lost their interest in the instant Civil appeal, therefore, the Civil Appeal No.09/2017 is hereby dismissed for non prosecution.”
The applicant filed restoration application, which was also dismissed vide order dated 31.01.2018 and the operative findings are reproduced here-in-below:
“Considered the arguments and perused the record which shows that the applicant/appellant has preferred appeal being aggrieved the Judgment and passed by the learned Senior Civil Judge Kandhkot dated 14.02.2017. The appeal is filed on dated 18.03.2017 by the counsel for the appellant/applicant, thereafter the applicant/appellant never appeared before this Court in appeal till 23.10.2017 and his counsel called present just on 08.04.2017 and 21.08.2017 out of 20 different dates of hearing, and thereafter, on dated 23.10.2017, the appeal was dismissed for non-prosecution without admission. On dated 05.01.2018 passing more than two months and ten days Restoration of appeal under order XLI Rul3 19 r/w section 151 CPC was filed by counsel for applicant/appellant, but again applicant/appellant and his counsel called absent on three different date of hearing. The counsel for appellant/applicant has claimed ground of his personal accident for late filing of Restoration Application, but record shows that prior to filing Restoration Application the applicant/appellant and his counsel continuously remained absent without lawful justification which shows that the applicant/appellant have lost their interest and found to be indolent.
The appeal is dismissed under Order XLI Rule 11(2) CPC, 1908 and for its Restoration Section 5 of the Limitation Act, 1908 shall applying under Order XLI Rule 11(2) CPC.
The appellant is also remained failed to disclose for his absence which may prove that he was prevented by any sufficient cause from the appearance when appeal was fixed and called for hearing under Order XLI Rule 19(1) CPC, 1908.
In the light of reasons mentioned above I am of the humble view that the appellant/applicants remained failed to make out his appeal for Restoration, hence application for restoration of the appeal under Order XLI Rule 19(1) CPC, 1908 is hereby rejected. Orders accordingly.”
2. Counsel for the applicants submits that appeal ought not to have been dismissed on mere technicalities and should have been decided on its merits. On the contrary learned counsel for the respondent submits that record speaks for itself and no cavil has been articulated in such regard, hence, the impugned order is sound and does not merit any interference.
3. Heard and perused. The truancy of the applicants from the proceedings under scrutiny is prima facie apparent and the same has also been admitted by the applicants' counsel. Under such circumstances it was the prerogative of the learned appellate court to determine the proceedings and that is what appears to have been done. Applicants remained unable to justify their absence before the concerned court and no case has been made out for this court to consider the same under its revisionary jurisdiction.
4. This Court has considered the contentions of the applicant and has noted the inability to cite a single ground based upon which the jurisdiction of this Court could be exercised under section 115 of Code of Civil Procedure. There is no suggestion that the impugned judgments are either an exercise without jurisdiction or a failure to exercise jurisdiction or an act in exercise of jurisdiction illegally or with any material irregularity. It is trite law[1] that where the fora of subordinate jurisdiction had exercised its discretion in one way and that discretion had been judicially exercised on sound principles the supervisory forum would not interfere with that discretion, unless same was contrary to law or usage having the force of law.
5. The applicants’ counsel has remained unable to demonstrate any infirmity in the impugned order, meriting invocation of the revisionary jurisdiction, hence, present Civil Revision Application is found to be devoid of merit and is hereby dismissed.
JUDGE
[1]Per Faqir Muhammad Khokhar J. in Naheed Nusrat Hashmi vs. Secretary Education (Elementary) Punjab reported as PLD 2006 Supreme Court 1124; Naseer Ahmed Siddiqui vs. Aftab Alam reported as PLD 2013 Supreme Court 323.