IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Civil Revision Application No. S-49 of 2009.

Applicant: Nizamuddin son of Fateh Muhammad, Bycaste Shaikh, Resident of Mohallah Godo Shop, Khairpur.

Through M/s Abdul Qadir Shaikh and Abdul Aziz Shaikh, Advocate.

Respondents: 1. Muhammad Shaman son of Moharram Khan Abro. 2. Mst. Razia w/o Muhammad Shamman d/o Ghulam Nabi Abro. Both Resident of Mohalla Dabbar, Taluka and District Khairpur.

3. Province of Sindh, though Executive Officer (Revenue) Khairpur.

4. Muhammad Ayub Soomro SHO Police Station A-Section Khairpur.

Through Mr. Safdar Ali Bhatti, advocate.

Mr. Shaharyar Imdad Awan, AAG for official respondents.

Date of hearing: 29-04-2021.

Date of decision: 29-04-2021.

O R D E R.

IRSHAD ALI SHAH, J. The facts in brief necessary for disposal of instant Civil Revision Application are that a suit for declaration of ownership and injunction was filed by the private respondents. It was dismissed by learned trial Court, on appeal, it was decreed by way of judgment by learned appellate Court, which is impugned by the applicant before this Court by preferring the instant Civil Revision Application.

2. Heard learned counsel for the parties.

3. The perusal of the record reveals that the appeal preferred by the private respondents was dismissed by learned appellate Court for non-prosecution on 28-02-2007, its restoration was sought for by them by filing such application, during pendency whereof, the very appeal was disposed of by learned appellate Court on merits. The disposal of the appeal on merits, which was already dismissed for non-prosecution, without undertaking an exercise to restore the same to regular file by learned appellate Court was not justified. In such way the applicant has been denied his right of challenge to restoration of appeal, if, it would have been restored for hearing.

4. When confronted with above position, learned counsel for the applicant and learned AAG for official respondents expressly while learned counsel for private respondents impliedly suggested for remand of the matter to learned appellate Court for decision on application for restoration of appeal.

5. In view of above, the impugned judgment and decree are set-aside with direction to learned appellate Court to decide the application of private respondents for restoration of their appeal first, if such application is allowed, then to dispose of the very appeal on merits and in accordance with law.

6. Instant Civil Revision Application is disposed of accordingly with no order as to costs.

Judge

Nasim/Steno