ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD

C.P. No.D- 309 of 2011

DATE ORDER WITH SIGNATURE OF JUDGE

1. For Katcha Peshi

2. For hearing on M.A 1889/11

3. For hearing on M.A 1890/11

28.04.2015.

Mr. Jagdish R. Mullani advocate for the petitioners.

Mr. Irfanullah Khan advocate for the Legal Heirs of respondent No.1.

Mr. Allah Bachayo Soomro, Additional A.G for respondents No.2 to 4 and 7.

None present for the Legal heirs of respondent No.5 and same position to respondent No.6.

Through this Constitutional Petition the petitioners have prayed that the order dated 25^th January 2011 passed in Civil Revision Application No. 52/2005 may be set aside which was passed without considering the order dated 2^nd December 2010 passed by this Court in C.P No.D-453/2010.

In fact, through aforesaid Civil Revision Application No.52/2005 the deceased respondent No.1 challenged the order dated 15.04.2005 passed by the learned III-Senior Civil Judge Hyderabad whereby he allowed the application moved U/s 12(2) CPC and set aside the judgment and decree passed in F.C.Suit No.90/1979. Earlier also revision was filed which was dismissed and it was challenged in C.P No.D- 453/2010 and vide order dated 2^nd December 2010 by consent the said petition was disposed of by this Court and the order passed in the revision application was set aside with the directions to the learned District and Sessions Judge Hyderabad to decide the matter himself within fifteen (15) days from the date of first hearing. It was further observed by the learned Division Bench of this Court as under:-

“If the District Judge is of the view that the application for restoration of the Revision Application is barred by time, he may decide the same and should not travel on merits but if he is of the view that the application for restoration of Revision Application is not barred by time, he may give findings and then decide the Revision Application on merits but all this is to be done within 15 days from the first date of hearing.”

The reproduction of the portion of order unequivocally shows that the two directions were given to the learned District Judge Hyderabad; one is to decide the question of limitation whether the ex parte order may be recalled or not and if reached to the conclusion that the restoration application of revision application is not barred by time then he may also give findings and then decide the revision application on merit.

Both the learned counsel agreed that the question of limitation as well as the maintainability of restoration application has been considered but in the concluding paragraph of the order the learned District Judge observed as under:-

“Perusal of record reveals that there is explanation furnished by the legal-heirs of deceased Shajuddin that their counsel could not trace them after the death of their father, therefore, considerable time was consumed when application U/O IX R. 9 CPC was filed. Accordingly, the Revision is allowed with no order as to cost.”

They further argued that the concluding paragraph is not clear as to whether the restoration application of the revision has been allowed or the main revision has been disposed of and due to this ambiguity they are facing hardship.

We have also minutely gone through the concluding paragraph which refers to the explanation furnished by the legal heirs of deceased Shujauddin that their counsel could not trace them after the death of their father hence considerable time was consumed when an application U/o IX Rule 9 CPC was filed and in the conclusion the learned District Judge simply observed that the revision is allowed with no order as to cost which does not show in clear terms whether the revision is allowed to the extent of allowing restoration application or the revision is allowed to set aside the order passed on an application moved U/s 12(2) CPC. Both the learned counsel also agreed that in order to clarify this ambiguity it would be in the fitness of things that the order may be set aside and remanded back to the learned District Judge Hyderabad to decide the revision application afresh in terms of the order dated 02.12.2010 passed in C.P No.D-453/2010. Learned Additional Advocate General Sindh also argued that there is no clarity in the concluding paragraph.

As a result of above discussion, the impugned order dated 25.01.2011 is set aside and the matter is remanded to the learned District Judge Hyderabad with the directions to comply with the order dated 2^nd December 2012 passed in C.P No.D-453/2010. It is further clarified that for the purposes of deciding the fate of any proceedings on the touchstone of the limitation, it is incumbent upon the court to decide first the question of limitation and then travel towards merits of the case so we expect that the question of limitation will be decided first as already observed by this Court in C.P No.D-453/2010 vide order dated 02.12.2010 and if the learned District Judge reaches to the conclusion that the applicant’s legal heirs have successfully crossed the barriers of limitation then the matter will be taken up on merits. Since this is an old matter the learned District Judge Hyderabad will decide the pending revision within two months after issuing notice to the parties. Petition is disposed of in the above terms along with pending applications.

JUDGE

Ali Haider/P.A