ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Constt. Petition No. D-62 of 2023.

DATE

OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

Before:

Mr. Justice Irshad Ali Shah.

Mr. Justice Arbab Ali Hakro.

1. For hearing of M.A.No.252/2023.

2. For hearing of main case.

23.05.2023

Mr. Aftab Ahmed Channa, Advocate for the petitioners.

None for the respondents No.1 and 4.

Mr. Ayaz Ali Noorani, Advocate for rest of private respondents.

Mr. Abdul Hamid Bhurgri, Addl.A.G Sindh.

=*=*=*=*=*=*=*=*=

ARBAB ALI HAKRO, J;- The facts in brief necessary for disposal of instant petition are that the petitioners were made ex-parte and debarred from filing their written statement by learned Senior Civil Judge, Kandhkot in F.C.Suit No.364/2017 which was pending in his Court, vide order dated 26.02.2022, which they sought to be set aside by filing an application U/O IX Rule 7 CPC; it was dismissed by him vide order dated 14.12.2022, which they impugned by filing civil revision application; it was dismissed by learned District Judge/MCAC, Kashmore @ Kandhkot, vide order dated 25.01.2023, which is impugned by them before this Court by way of instant petition.

It is contended by learned counsel for the petitioners that valuable rights of the petitioners are involved in the subject litigation; therefore, they ought not to have been dislodged from the contest by learned Courts below on the basis of technicalities. By contending so, he sought for setting aside of the impugned order with direction to learned trial Court to accept written statement of the petitioners and to proceed with the case further in accordance with law.

Learned Addl.A.G was fair enough to say that the right of contest could not be denied to the petitioners. However, they on account of their negligence as token of caution be imposed cost prior to filing of their written statement before learned trial Court.

None has appeared on behalf of the respondent No.1 and 4. However, learned counsel for rest of the private respondents by supporting the impugned order has sought of dismissal of the instant petition by contending that the petitioners have failed to file their written statement within time prescribed by law and the very application for setting aside of ex-parte order was time barred, as such it has rightly been dismissed by learned Courts below.

Heard arguments and perused the record.

Admittedly, the suit is still pending on the file of learned trial Court; the valuable rights of the petitioners are said to be involved in the subject litigation; therefore, in such situation, it would be unjustified to dislodge them from the active contest on the basis of technicalities, which obviously is against the mandate contained by Article 10-A of the Constitution of Islamic Republic of Pakistan, which prescribes right of fair trial to everyone. If the petitioners are permitted to file the written statement then it would not only meet with the ends of justice but would help learned trial Court to arrive at right conclusion. Even otherwise, no time has been prescribed either in Civil Procedure Code or Limitation Act for setting aside of the ex-parte order, therefore, the cause of the petitioners could not be defeated on point of limitation; it obviously was to be governed by Article 181 of Limitation Act, 1908, which prescribes period of three years for filing such application when the right to apply occurs.

In case of Wali Muhammad Vs. Hakeem Muhammad Khan and others (1993 MLD-1101), it has been held by division bench of this Court that;

“As we find ourselves in agreement with the contention raised by Mr. Zahid Marghoob that no peripd of limitation is provided under any law for making an application under Order IX, rule 7, C.P.C. by the defendant, in such a case only Article 181 of the Limitation Act would be applicable which provides for a period of three years for filing of such application.”

In view of above, the impugned order is set aside; consequently, the petitioners are permitted to file their written statement in the aforementioned suit before learned trial Court within 30 days, hereinafter, after making payment of Rs.10,000/- to the plaintiff as cost, the moment the written statement is filed by the petitioners, the case to be proceeded further in accordance with law by learned trial Court.

The instant petition is disposed of accordingly, with no order as to costs.

JUDGE