ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

C.P No.D-17 of 2025

DATE	ORDER WITH SIGNATURE OF JUDGE

BEFORE:

Mr.Justice Muhammad Saleem Jessar.

Mr.Justice Nisar Ahmed Bhanbhro.

1. For orders on office objections. ‘A’.

2. For hearing of main case

Petitioners: Mst. Sadaf Gul & 2 others.

Through Mr. Ashique Hussain Kalhoro, Advocate

Respondent No.1 to 4 Sain Bux in person on behalf of respondents No.2 to 4

Respondents No 6 to 11 Through Mr. Liaquat Ali Shar, Addl. A.G.

Respondents No.12 to 15: Nemo

Date of hearing: 16.04.2025.

Date of Decision: 16.04.2025

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ORDER

NISAR AHMED BHANBHRO, J;- This Constitution Petition is directed against the order dated 16.11.2024 (the impugned order) passed by the court of Learned Additional District Judge-II, Kandhkot(the Revisional Court) in Civil Revision Application No.02 of 2024 re-Sadaf Gul and 2 others versus Sain Bux and others, whereby the Revision Application filed by the applicants against the order dated 01.12.2023 passed by the Court of Learned Senior Civil Judge, Kashmore (the Trial Court) on application under section 12(2) CPC in F.C suit No.159/2021 re-Sain Bux versus Mukhtiar Ahmed and others, was dismissed.

2. The facts in brief of the petitioners’ case arethat the petitioners being aggrieved of the judgment and decree passed by the Trial Courtfiled an application under Section 12(2) CPC which was dismissed vide order dated 01.12.2023. ThePetitioners challenged the order ofthe Trial Court through Civil Revision Application before Learned District Judge Kashmore at Kandhkot which was assigned to the (court of 2^nd Additional District Judge, Kandhkot, Revisional Court) for disposal in accordance with law. That on 16.11.2024 the matter was fixed for hearing before Revisional Court when the applicant himself appeared and filed an adjournment application seeking time as his counsel was not available and busy before another Court. The Revisional Court declined to grant adjournment and dismissed the revision application under default for non prosecution through the impugned order. The applicant filed an application for restoration but that too was dismissed vide orders dated 03.12.2024. The Petitioner has filed this petition seeking indulgence of this Court against the impugned order.

3. Mr. Ashique Hussain Kalhoro Learned Counsel for the petitioners submits that law favours adjudication of matters on merits and not on technicalities. The petitioners had filed an application under Section 115 CPC specifically raising a plea that the trial court has failed to exercise jurisdiction vested in it by dismissing the application under section 12(2) CPC. Further contends that the right of hearingwas denied to the petitioners, as matter involved rights of petitioner in immoveable property he ought to have been given an ample opportunity to assist the Court through his Counsel as he being a layman could not assert the legal pleas before the Revisional Court. He contended that sufficient cause was furnished before the Court for absence of Counsel but the same was not acceded to resulting into a miscarriage of justice. He prayed for setting aside the impugned order and remanding back matter to learned Revisional Court for deciding itafresh on merits after giving an opportunity of hearing to the petitioners through their counsel.

4. Mr. Liaquat Ali Shar, learned A.A.G has supported contention of learned counsel for the petitioners and submits that the matter be referred back to the trial court for deciding afresh on merits.

5. The respondent No.1 present and heard in person. He supported the impugned orders and asserted that the petitioners were using delaying tactics to avoid due process of law whereas decree has been passed in his favour.

6. Heard learned counsel for parties andperused the material available on record with their able assistance.

7. Meticulous perusal of record reveals that the petitioners filed Civil Revision Application under Section 115 CPC against the order dated 01.12.2023 wherein their application under section 12(2) CPC was dismissed summarily without framing issues and affording an opportunity of adducing evidence to prove their stance. The matter came up for hearing before theRevisional Court on 16.11.2024 when the applicant was present in person and he filed an adjournment application stating a specific reason that his counsel was not available therefore time may be granted to him to bring his counsel to argue the case. The Court declined the adjournment and proceeded with the matter without seeking proper legal assistance and observed that the petitioners and their counsel had no interest to proceed with the matter and they only intended to prolong the proceedings and to wastetime of the Court therefore, the Civil Revision was dismissed in default. Without rendering deliberations on merits of the case theRevisional court observed that learned trial court rightly dismissed application under section 12(2) CPC filed by the petitioners without framing issues and recording evidence which is also found legal, well reasoned and this Civil Revision Application was meritless. The operative part of the impugned order is reproduced for the ease of reference:

“Consequently based on material I am of firm view that applicants, the alleged attorney and the learned counsel have no interest to proceed this matter and they only intend to prolong proceedings and to waste precious time of this court unnecessarily and malafidely, thus, Civil Revision in hand stands dismissed in default. Summarily with observation that the same applicants/interveners despite court notice did not come forward for recording their evidence as a Court witness which means that they were fully aware about the proceedings of suit and application so filed was meritless, so this Court is also of same view that application so filed for interveners/ applicants was meritless and the learned trial court rightly dismissed it without framing issues and recording evidence vide order dated 01.12.2023 which is also found to be legal and well reasoned and civil revision so filed is also hopelessly meritless. Misc: pending applications, if any stood dismissed being infructuous.”

8. The record reflects that on the said date none from the opponent side was even available though the names of Counsel for Petitioners and Respondent do find mention in the impugned order but no where it reflect that any of the party(ies) was/were heard while deciding the Revision Application. The Revisional Court in the impugned order has observed that the Revision Application was hopelessly meritless by reproducing the order passed by the Trial Court without dilating upon the merits of the case lest to say by describing that as to why the Revision Application was meritless. The revisional jurisdiction of the District Court is corrective and supervisory in nature, the Revisional Court has to ruminate the jurisdictional errors and burdened with a responsibility to examine as to whether the Court below exercised the jurisdiction illegally or material irregularity.

9. The Court of law is saddled with a balancing task to administer substantive justice between the parties after providing them ample opportunity of hearing which is significant component of fair trial. There is no cavil to the proposition that the Courts of law may non suit the careless and negligent litigants when they fail to appear and proceed with the case without sufficient cause but in the case in hand the Petitioners have remained present before the Court without fail and absence of their Counsel for one or other reasons would not in any manner deny them the right of proper hearing.

10. The right to fair trial isrecognized as a fundamental right of the individuals as envisagedunder article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 (The Constitution) and the courts of law are under an obligation to provide a fair opportunity of hearing to the litigants. If it is borne out from the conduct of parties that theyintend to frustratethe process of law then court should adopt coercive measures to ensure decision of cases within reasonable time. The weapon to non suit a party under default should be taken as a last resort.

11. The novel principle of law is to decide a litigationon its own merits, the effect of disposing of cases for non prosecution is nothing but to overburden the superior Courts with uncalled for litigation, which may be halted by rendering decisions on merits. The Petitioners filed an application for adjournment before the court as their counsel was not available on the said date. The Revisional Court could have declined adjournment application by imposing sufficient costs, if the matter was ripe for final hearing and counsel for other side was available and ready to proceed. But in the impugned order it is no where mentioned that the counsel for other side was also available and was ready to argue the matter eventhe proper course in such circumstances was to hear the case of the respondents and to adjourn the mater to a suitable date for hearing of counsel for the Petitioners. It transpires from the record that the case file was received in the Revisional Court through transfer; therefore, it was incumbent upon the transferee Court to issue notice to the parties, because the case had been transferred by an administrative order and not under section 24-A (2), C.P.C, perhaps it was the reason that none from the Respondents side effected appearance before the Court on said date.

12. The Civil Court is empowered under the law to dismiss the suit / appeal /revision in default when it appears from the record that party is halting the due process of law and not pursuing the matter with due diligence. In the instant matter position is different, the Petitioners remained present on each and every date of hearing before the Court. After dismissal of Revision Application an application was filed by the Petitioners for restoration of Revision Application on 03.12.2024 but it was dismissed on the same day on the ground that no sufficient cause was assigned for seeking restoration. The law has not defined sufficient cause in a specific manner but a valid reason for absence of the Counsel would render a sufficient cause for reversing an order of dismissal for non prosecution. Since the valuable interests as to the immoveable property of the petitioners are involved therefore it will be in the fitness of the things that to decide the case on merits.

13. The Honorable Supreme Court of Pakistan in the case of Faryal Arif Latif Versus Arif Latif reported as 2025 SCMR 395 has rendered detailed deliberations on the issue of delay in disposal of cases, substantial justice and sufficient cause for restoration of suits and decisions on merits, in Para No 11, 13 and 14 of the judgment the Honorable Court has been pleased to hold as under:

“11. According to the niceties of Order IX, Rule 8, C.P.C., where the defendant appears but the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where only part of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. Whereas, Rule 9 of the same Order, inter alia, accentuates that where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action, but he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit. The learned counsel for the petitioner vigorously argued that the suit had been dismissed previously too, and despite being granted several opportunities, the respondent/ plaintiff failed to lead and complete the evidence. Therefore, it could be considered another ground for dismissing the restoration application. In our view, the suit was dismissed for non-prosecution on the day when it was fixed for documentary evidence. Therefore, for its restoration, sufficient cause for non-appearance was to be shown for that particular day of non-appearance, which is material for the purpose of allowing the restoration application and this has nothing to do with past failures. Rule 8 and 9 of Order IX, C.P.C., do not impose any obligation on the Court to first consider the past record before restoring the suit to its original position. Instead, the Court is only required to determine whether sufficient cause for non-appearance is made out for the day when the suit was dismissed for non-prosecution. Past conduct may be ruminated to assess the seriousness or non-seriousness of a party in the litigation, and due to any past reckless conduct, the Court may impose costs on any default with a warning. However, past conduct alone cannot be considered a ground for dismissing the restoration application if sufficient cause for non-appearance on the date of hearing is otherwise made out.”

“13. The function of the court is to administer substantial justice between the parties after providing ample opportunity for hearing which is a significant component and virtue of a fair trial, whereas the procedure serves as a machinery with the object of facilitating and not obstructing the administration of justice. Therefore, it ought to be construed liberally and, as far as possible, technical objections should not be allowed to defeat substantial justice. This Court, in the case of Imtiaz Ahmad v. Ghulam Ali (PLD 1963 SC 382), held that the proper place of procedure in any system of administration of justice is to help and not to thwart the grant of rights to people. All technicalities have to be avoided unless it is essential to comply with them on grounds of public policy. The English system of administration of justice, on which our own is based, may be, to a certain extent, technical. However, we are not to take from that system its defects. Any system which, by giving effect to the form and not to the substance, defeats substantive rights, is defective to that extent. The ideal must always be a system that gives to every person what is his. According to Corpus Juris Secundum, Volume 21 (page 136): "While a Court may be expressly granted the incidental powers necessary to effectuate its jurisdiction, a grant of jurisdiction, in the absence of prohibitive legislation, implies the necessary and usual incidental powers essential to effectuate it, and subject to existing laws and constitutional provisions, every regularly constituted Court has power to do all things that are reasonably necessary for the administration of justice within the scope of jurisdiction and for the enforcement of its judgments and mandates."

“14. Another undeniable reality is that the number of cases in the court docket is increasing exponentially due to the surge in litigation across diverse fields. By and large, the criticism and condemnation by the public at large for delays in the disposal of cases, particularly civil suits, is directed solely at the Courts, without acknowledging that the parties and their advocates are also equally responsible and accountable for such delays. The frequent filing of adjournment applications is, in fact, a major cause of delay. As in this case, the counsel for the petitioner avowed that numerous opportunities were afforded to the respondent/ plaintiff but the evidence remained incomplete due to disorganized records. There are several crucial aspects which need to be doctored for convalescing and recuperating the public confidence. Every judge is a master of his own docket, and sanguine to the huge backlog in almost every court of this country, it is high time for courts to maintain proper in-built Case Management Systems across the board, even at the grassroots level.”

14. Sequel to the above discussion we are of the considered view that the Petitioners have made out a case for indulgence under writ jurisdiction of this Court under article 199 of the Constitution. We find that impugned orders dated 16.11.2024 and 03.12.2024 passed by Revisional Court are arbitrary, non speaking and perverse to the scope of section 115 CPC. We allow this Constitution Petition and set aside the impugned orders, the Revision Application filed by the Petitioners shall be deemed to be pending,the Revisional Court shall decide the application strictly on merits after providing right of hearing to all the parties under litigation, preferably within period of three months time from the date of this order. It is made clear that no party shall be given an unnecessary adjournment. The petition stands disposed of along with listed applications in above terms.

JUDGE