ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Civil Revision Appln. No.S-02    of  2012

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

29.3.2012.

For Katcha Peshi.

Mr. Muhammad Azeem Korai, advocate for the applicants.

Mr. Abdul Hameed Khan, advocate for respondents No.1 to 4 & 6 to 10.

Mr. Ameer Ahmed Narejo, State Counsel.

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                   The learned Counsel for the applicants argued that the Civil Appeal No.79/2010 was dismissed for non-prosecution on 21.5.2011 on the ground that various opportunities were provided to the appellants, but the appellants failed to argue the case and finally the appeal was dismissed.  He further contends that on 03.6.2011 an application under Order 41, Rule 19, read with Section 151, CPC was moved for readmission of the appeal, which was also dismissed on 17.10.2011.  The learned Counsel argued that the appeal was partly argued and since the case law was to be produced, therefore, advocate for the appellants Mr. Imtiaz Ali Mugheri sent an adjournment application on the ground that he had to produce case law, but the application was rejected and the appeal was dismissed for non-prosecution.  He further argued that the appeal was at the verge of arguments, therefore, it would be in the interests of justice to decide the appeal on merits.   

                   Conversely, the learned Counsel for respondents No.1 to 10 argued that various opportunities were provided to the appellants, but they failed to argue the appeal and ultimately the appellate Court dismissed the appeal for non-prosecution.  He further contends that instead of filing this revision application the applicants should have filed the appeal under Order 43 C.P.C, in which it is clearly provided that the order for rejection of application for readmission of appeal is appealable. 

                   So far as the delaying tactics on the part of appellants is concerned, it is apparent on the face of the record that the appellants for one or other reason moved adjournment applications.  So far as the next objection of the learned Counsel that the order was appealable, therefore, instead of revision application, an appeal should have been filed.  At this juncture, I would like to refer to the case of Manager, Jammu & Kash. State Property v. Khuda Yar, PLD 1975 SC 678, in which the Hon’ble Supreme Court held that High Court nevertheless in appropriate case can interfere in the revision under Section 115, C.P.C and make such order in the case as it thinks fit.  Scope of powers under Section 115 corresponds to remedy of certiorari and in fact goes beyond Civil Procedure Code under Order 41, Rule 19 and Order 43, Rule 1(t).  Since the appeal was riped for hearing, it would be in the interest of justice to provide one more chance to the applicants to appear and argue the appeal, so that the matter may be decided on merits instead of non-suiting the applicants on technical knockout.

                   The learned Counsel for the respondents has no objection if the impugned order is set aside subject to payment of cost. 

                   As a result of above discussion, the impugned order is set aside subject to the payment of cost of Rs.7000/- within one week to the respondents’ Counsel by the applicants.  It is further directed that the learned appellate Court shall decide the appeal within a period of one month without allowing any unnecessary adjournment and in case the Counsel of the applicants/appellants will fail to argue the appeal, the learned appellate Court will be at liberty to pass order in accordance with the law.

                   Applicants will submit the receipt for the payment of cost in the appellate Court within one week.

                   Revision application stands disposed of.

                                                                                             JUDGE