1983 PLP 2762 (CLC)

Mian Habibur Rehman Ansari for Petitioner. This is a petition under Article 9 of the Provisional Constitution Order, 1.981 whereby Khalil Ahmad, petitioner wants this Court to declare the order dated 17th April, 1982 passed by the learned Additional District Judge, Multan‑respondent No. 5 to be illegal, ultra 'fires, without lawful authority and of no legal effect.

2. The facts leading up to this petition in brief are that Syed Karar Hussain and 3 others‑respondents Nos. I to 4 filed a suit for possession through pre‑emption against Khalil Ahmad petitioner/vendee/defendant on the ground that they being the real sons of the vendor had a superior right of pre‑emption against the vendee/ petitioner. The case was fixed for 9th April, 1976, the respondents/plaintiffs were directed to deposit 1 /5th of the sale price before the said date, i.e. 9th April, 1976 which happened to be a holiday, the case came up before the learned trial Court on 10th April, 1976. On that date, the plaintiffs did not appear, the defendant; petitioner was, however, present and as such the suit of the respondent plaintiffs Nos. I to 4 was dismissed for non‑appearance under Order IX, rule 8, C. P. C. The respondents Nos. 1 to 4, moved an application for the restoration of the suit but the same was dismissed in default on 26th June, 1976. The plaintiffs/respondents again moved an application for the restoration of the application for the restoration of the suit. This appli cation was contested. by the petitioner/defendant. The learned trial Court rejected that application. Aggrieved by that order, the respondent/plaintiffs Nos. I to 4 filed a revision before the learned District Judge, Multan and the same was entrusted to the learned Additional District Judge respondent No. 5 for disposal who, after hearing the parties accepted the same and restored the application. Hence this writ petition.

3. Before me, the learned counsel has raised the following points ;‑ (i) The respondent No. 5 had announced the rejection of the revision and thereafter he wrote a judgment whereby he allowed the revision and as such the announcement and the judgment are at variance ; (ii) that it was proved by evidence on record that there was no misapprehension or misunderstanding of the date of hearing i.e. 26th June, 1976, as against this the respondents failed to produce the best evidence i.e. and `diary of the Advocate' to prove the misapprehension and as such the matter has not been properly appreciated by respondent No. 5 ; (iii) that the respondent No. 5 in his impugned order has not declared the order of the trial Court to be illegal, irregular or without jurisdic tion and as such he had no authority to interfere with the order of the trial Court under section 115, C. P. C.

4. After hearing the learned counsel for the petitioner, I find that respondent No. 5 was competent to set aside the order of the trial Court while sitting in his revision at jurisdiction. As for the first point, I find that the learned Additional District Judge while announcing the judgment on 17th April, 1982 has stated as follows :‑ On 18th May, 1982 the learned counsel for the petitioner was afforded an opportunity to file the affidavit of the learned counsel for the petitioners who was present at the time of the announcement to the effect that respon dent No. 5 had announced the rejection of the revision. Today the learned counsel has expressed his inability to support his contention by the affidavit of the counsel. I have considered this objection carefully. The perusal of the order written in Urdu as reproduced above shows that the announcement was in the light of the order written in English. The words are of great significance and indicate that the announcement was with ‑reference to tile order which clearly shows that the revision was accepted. To my mind, it is a case of an honest error instead of it has been inadvertently written possibility of an honest error in writing the word instead of cannot be excluded. As for point No. 2, 1 am of the view that it relates to the appreciation of the evidence and is not a good ground for interference with the impugned order while sitting in writ jurisdiction. The' learned Additional District Judge, has considered the relevant evidence produced by the parties and has believed Ch. Zia Ullah, Advocate and has given sound arid cogent reasons in support of his conclusion. He also observed that law favours decision of the suits on merit. As far as third point is concerned I find that respondent No. 5 has observed "the learned trial Court erred in deciding this issue against the petitioner". I am of the opinion that it was not necessary for respondent No. 5 to write in so many words that the impugned order was illegal, irregular or without lawful authority or jurisdiction. The judgment as a whole indicates that he has exercised his jurisdiction under section 115, C. P. C. legally and properly. For what has been stated above there is no force in the petition and the same is dismissed in limine. M.Z.M. Petition. dismissed.