IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Civil Revision Application No.S-42 of 2016.
Hearing of case.
1. For Orders on CMA No. 766/2019.
2. For hearing of main case.
3. For hearing of CMA No. 356/2016.
O R D E R.
09-04-2021.
Mr. Chaudhry Shahid Hussain advocate
for the applicant. Mr. Abdul Rasheed
Kalwar advocate for the respondents.
Mr. Shaharyar Imdad Awan, AAG Sindh.
Abdullah Bhutto respondent No.1 in
person.
None for respondents Nos. 3 to 4.
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IRSHAD ALI SHAH,
J.- The facts in brief for disposal of instant
Civil Revision Application are that respondent Muhammad Eisa filed a suit for
cancellation of sale deed, statements and entries in revenue record etc, before
learned Senior Civil Judge Ubauro. It was decreed by way of judgment dated
28-02-2013, an appeal was preferred by the applicant against such judgment and
decree, it was dismissed for non prosecution by learned Additional District
Judge Ubauro on 06-08-2014. The applicant sought for restoration of his appeal
by filing such application, it was also dismissed by learned appellate Court on
21-03-2016, such order is impugned by the applicant before this Court by
preferring the instant Civil Revision Application.
2. It
is contended by learned counsel for the applicant that the valuable rights of
the applicant are involved; therefore, the appeal of the applicant was not to
have been disposed of by learned appellate Court for non-prosecution. By contending
so, he sought for setting aside of impugned order with direction to learned
appellate Court to dispose of the appeal of the applicant on merits.
3. Learned
counsel for the respondent Muhammad Eisa has sought for dismissal of instant Civil
Revision Application by contending that no cogent ground has been advanced by
the applicant for restoration of his appeal and the very decree has been
executed.
4. Learned
AAG and respondent Abdullah Bhutto in person have adopted the arguments
advanced by learned counsel for respondent Muhammad Eisa.
5. I
have considered the above arguments and have perused the record.
6. Admittedly,
the appeal was dismissed for non-prosecution, when it was fixed for service of
some of the respondents. The restoration of the appeal was sought for by the
applicant within time prescribed by law by advancing cogent reasons. The
valuable rights of the parties apparently are involved in the instant
litigation adjudication whereof was to have been based on merits, therefore,
learned appellate Court ought not to have declined the restoration of the
appeal of the applicant under any pretext. By such an act, the applicant obviously
has been denied right of fair trial, which is guaranteed by Article 10-A of the
constitution of Islamic Republic of Pakistan, 1973. Such right could not be
denied to the applicant even by this Court under the pretext that the very
decree has been executed.
7. In
view of above, the impugned order is set-aside with direction to learned
appellate Court to dispose of the appeal of the applicant on merits.
8. The
instant Civil Revision Application is disposed of accordingly with no order as
to costs. Judge
Nasim/P.A