R. A. NO. 59 / 2009
SULLEMAN ----------------- PETITIONERS
VERSUS
MURAD ALI ------------------ RESPONDENT
Date of hearing : 07.04.2014
Petitioner : Through Mr. Muhammad Arshad Pathan,
Advocate
Respondent No.1 : Through Mr. Jhamat Jethanand,
Advocate
Respondent Nos. 2 to 5 : Through Mr. Allah Bachayo Soomro,
Additional A.G.
O R D E R
MUHAMMAD JUNAID GHAFFAR, J. - Through instant civil revision application under Section 115 CPC the applicant has challenged the order dated 22.4.2009 passed by the learned Additional District & Sessions Judge, Umerkot, (“Judge”) whereby the application filed by the respondent No. 1 under Order 41 Rule 19 read with Section 151 CPC, has been allowed and the order dated 9.2.2008 whereby Civil Appeal No. 02 of 2005 was dismissed for Non-prosecution has been recalled and the appeal has been restored to its original position.
2. Briefly, the facts are that respondent No.1 filed F.C. Suit No. 32 of 2000 which was dismissed by the learned Senior Civil Judge, Umerkot on 23.12.2004 and the said judgment and decree was challenged by the respondent No. 1 in Civil Appeal No. 02 of 2005. On 9.2.2008 said appeal was dismissed for non-prosecution and thereafter the order of such non-prosecution was recalled on an application filed by the respondent No. 1 under Order 41 Rule 19 CP and the appeal was restored to its original position. The applicant being aggrieved with such restoration of the appeal has impugned the same through instant revision application.
3. Learned Counsel for the applicant contended that the learned Judge has erred in law and facts by allowing the application for restoration of the appeal as no sufficient grounds and or documents were placed by the respondent No. 1 on the basis of which the appeal could have been restored to its original position. Learned Counsel further contended that even the restoration application was filed after a delay of 78 days and such delay was wrongly condoned by the learned Judge, as after dismissal of the appeal in non-prosecution vested rights have accrued to the applicant. Learned Counsel further contended that after dismissal of the appeal in non-prosecution the applicant has sold out the property in question, therefore, the impugned order was liable to be set-aside in favor of the applicant. In support of his contention, learned Counsel relied upon the case of Syed Junaid Akhtar and others v. Managing Director / Chairman and others (PLD 2008 (SC) 130), Sher Muhammad v. Said Muhammad Shah (PLJ 1981 (SC) 268), Bhoop Khan v. Additional Settlement Commissioner (Land) (1980 SCMR 782), Government of the Punjab through Secretary and another v. Messrs Empire Cinema McLeod Road, Lahore through Manager and another ( 2004 YLR 464), Muhammad Shafique Chatta v. Sh. Muhammad Younis (2005 YLR 2277), Messrs M.A. Khan & Co. v. Messrs Pakistan Railway Employees Cooperative Housing Society Ltd. (1996 CLC 45), Messrs Bengal Corporation and 8 others v. Middle East Bank Ltd (PLD 2000 Kr. 326).
4. Conversely, learned Counsel for respondent No. 1 contended that the courts are always supposed to be liberal in such situation as the cases are to be decided on merits and since in the instant matter, the learned Judge has restored the appeal filed by the respondent No. 1 to its original position after considering the reasons and grounds as submitted by the respondent No. 1, therefore, such findings of the learned Judge cannot be assailed through the instant revision. Per learned Counsel the applicant has failed to point out that the said order was without any jurisdiction or was passed in exercise of any illegal jurisdiction assumed by the learned Judge, which according to the learned Counsel were the prerequisites for challenging the same under the revisional jurisdiction of this Court. Learned Counsel further contended that infact the impugned order has been passed after dilating upon the entire medical record and history of the respondent No.1, therefore, the allegation to the effect that the respondent No. 1 had no sufficient ground for restoration of the appeal is not correct. Learned Counsel further submitted that the appeal was dismissed merely on the ground that cost for issuance of notice to some of the respondents was not deposited and subsequently when it was brought to the knowledge of the Court that the respondent was unable to attend the court and was also prevented from contacting his Advocate, the learned Judge had recalled the order of non-prosecution and restored the appeal to its original position. In support of his contention, learned Counsel relied upon Muhammad Hussain v. Mian Iqbal Salah-ud-din (1986 CLC 1441), N.W.F.P. Employees’ Social Security Institution through D.G., Rehman Baba Colon, Peshawar (2002 SCMR 765), Mst. Mariam Bai and another v. Mst. Mehrunnisa Begum (1985 SCMR 2064) and Muhammad Nazir v. The Secretary, Cooperative Department and another (1989 MLD 1156).
5. The learned Additional Advocate General has supported the arguments raised on behalf of the respondent No. 1 and has prayed for dismissal of the instant revision application. I have heard all the learned Counsel and have perused the entire record and the case law relied upon by the learned Counsel. It appears that respondent No.1 had initially filed F.C. Suit No 32 of 2000 which was dismissed by the learned Senior Civil Judge, Umerkot vide judgment dated 23.12.2004 and decree dated 30.12.2004, against which the respondent No. 1 had preferred Civil Appeal No. 02 of 2005. In the said appeal notices were apparently ordered to be issued to all the respondents including the present applicant who stood served as per the record of the diary sheet and the order sheet of the said appeal annexed in the instant revision application. In fact on 09.2.2008 when the said appeal was dismissed by the learned Judge, the same was fixed for service upon respondent No.2 and on that date the respondent No. 5, (the present applicant) was duly served and was present before the Court. It would be advantageous at this stage to peruse the diary sheet dated 09.02.2008 as well as the order sheet of the same date which is available on record of the instant revisions application at pg.: 33 and 35 of the file. The diary sheet dated 9.2.2008 reflects the following position.
“9.2.2008
Appellant and his advocates are present. Advocates for respondent No.5 is present. Process not issued. Cost not deposited. Order passed on order sheet. Appeal is dismissed in non-prosecution and for non-deposit of costs.”
Similarly, the order sheet dated 9.2.2008 reflects the following position.
“9.2.2008
Matter is coming up for service against the respondent No.2. The record reveals that since many hearings the costs is not deposited neither appellant nor is Counsel present no such intimation is received matter is dismissed for non-prosecution with no order as to costs.”
6. It appears that according to the diary sheet, in fact on 9.2.2008 the respondent No.1 and his advocate were present and so also the advocate for present applicant. However, since cost was not deposited perhaps for issuance of the notices to other respondents, and despite several chances given by the Court, the appeal was dismissed for non-prosecution and for non-deposit of cost. Whereas, the order sheet dated 09.02.2008 reflects that the matter was fixed for service against respondent No.2 (in Civil Appeal) and since for many hearings the cost was not deposited and neither the appellant (respondent No.1) nor his Counsel was present, therefore, the appeal was dismissed for non-prosecution. However, in any case from the perusal of the diary sheet as well as order sheet dated 09.02.2008, it reflects that the matter was fixed for service upon respondent No.2 (in Civil Appeal) and not against the present applicant who was already on notice and was present before the Court. Therefore, even otherwise the appeal could not have been dismissed in its entirety against all the respondents for non-prospection by the learned Judge on the said date. Therefore, in all fairness, even on such facts as stated above, the respondent No.1 was entitled for restoration of its appeal which was perhaps wrongly dismissed by the learned Judge for non-prosecution against all the respondents, whereas it was only fixed for service of notice upon one of the respondents i.e. respondent No.2 (in Civil Appeal). This position is easily discernable from the bare perusal of the order sheet and the diary sheet dated 09.02.2008. Therefore, I am of the view, that the impugned order, though passed entirely on other consideration, is even otherwise correct in law and cannot be interfered with by this Court in exercise of its revisionary jurisdiction.
7. Now coming to the merits on the basis of which the impugned order for restoration of the appeal has been passed, it is observed that the learned Judge, after carefully examining the entire material and the medical reports and other supporting documents filed by the respondent No.1 has come to the conclusion that on the said date i.e. 09.02.2008 the respondent No.1 was unable to deposit the cost for effecting service upon the un-served respondents for medical reasons and therefore, the order of dismissal of the appeal for non-prosecution was recalled by the learned Judge by allowing the application under Order 41 Rule 19 read with Section 151 CPC. The learned Judge had also condoned the delay in filing the restoration application by allowing the application under Section 5 of the Limitation Act 1908 after imposing cost of Rs.2,000/- on respondent No.1. After examining the impugned order I am of the view that a well-reasoned order has been passed by the learned Judge even on merits of the restoration application, and it has been observed by the learned Judge that the respondent No.1 was prevented due to medical reasons and it was a sufficient cause for allowing the restoration of the appeal which was required to be decided on its own merits, otherwise. It must also be appreciated that once the Court has passed an order for restoration of an appeal or a case, after having satisfied itself on “sufficient cause” being shown, it has exercised its discretion on such aspect of the matter, and this Court under its revisional jurisdiction, must not normally, exercise such jurisdiction to interfere and upset such exercise of discretion and let the matter be decided on merits rather than its disposal on mere technicalities. Therefore, in my opinion no exception can be made to the impugned order which has been passed with proper application of judicial mind and I am not inclined to interfere with the said order which appears to be a well reasoned order and does not require any interference by this Court and consequently the instant revision application must fail. Insofar as the judgments relied upon by the learned Counsel for the applicant are concerned, it would suffice to observe that no hard and fast rule could be determined in exercising discretion for restoration of a case and it is always dependent on the peculiar facts and circumstances of each case. All these judgments were rendered after examining their own peculiar facts and are quite distinguishable from the facts of the instant case and hence not applicable to the case of the applicant.
7. In view of hereinabove, I had dismissed the instant revision application by means of a short order dated 7.4.2014 and the above are the reasons in support of such dismissal.
JUDGE
K/-