1980 PLP 42 (SCMR)

DORAB PATEL, J.‑There are two shops on Plot‑ No. 2 in Commercial Area No. 2, Malir, Karachi, in the Province of Sind and there is a dispute between the petitioner and the respondent about the title to one of these shops and the litigation between them about this shop which commenced fifteen years ago, threatens to go into the next decade. However, as suits other than the suit under appeal in this petition, are pending in the District Court, Karachi, we will not make any observation on the lengthy arguments of Mr. Nasim Farooqi and Mr. Ansar Hussain about the title to this shop. And it would be sufficient to observe here that the petitioner is in occupation of this shop and in February 1964, the respondent filed an eviction applica tion against him for his eviction in the Court of the Rent Controller, Karachi. The petitioner challenged the respondent's title, but as this issue was decided against him by the Rent Controller on 27‑5‑1966 he filed a declaratory suit in the Court of the VIth Civil Judge, Karachi, against the respondent in which he sought a declaration under section 42 of the Specific Relief Act about his title and also a permanent injunction to restrain the respondent from interfering with his rights in this shop. As this suit was dismissed on 27‑3‑1968, the petitioner filed an appeal in the District Court of Karachi and once again, for the purpose of this petition, it is sufficient to state that the case was remanded by the first appellate Court to the trial Court and the first date in the trial Court, after this remand, was 27‑9‑1971. Then the case was adjourned to the 30th of October, 1971, then to the 10th of December, 1971 and finally to 4th February, 1972. But as the petitioner was absent after the 27th of September, 1971 his suit was dismissed for default on 4‑2‑1972. He claims to have learnt of this order only on 14‑5‑1972 when a notice was pasted on his shop in the course of the execution proceedings commenced by the respondent in his rent case. Therefore, the next day he filed an application for restoration of this suit which was dismissed by the trial Court without even notice to the respondent. Therefore, he filed a second application for restoration on 19‑5‑1972, but this application too was dismissed on 31‑5‑1972 but after notice to the respon dent. The petitioner then filed an appeal in the District Court against this order of 31‑5‑1972 and together with the appeal, he filed an application for interim relief. This appeal being a first appeal was admitted to regular hearing but as the petitioner's injunction application was dismissed, he filed a revision in Sind & Baluchistan High Court which was admitted and he obtained from the High Court in this revision a Stay against his eviction from the shop in dispute. However, the appeal filed by him against the trial Court's order of 31‑5‑1972 was dismissed by an Additional District Judge on 9‑3‑1978, therefore, he challenged this order in another revision in the Sind High Court which was dismissed in limine on 15‑4‑1978. Meanwhile however, his first revision had been dismissed on 18‑3‑1977. And as we‑ will. presently show this order which was not challenged by the petitioner is fatal to his petition. Be that as it may, he has filed this petition for leave against the Sind High Court's order dated 15‑4‑1978 dismissing in limine his revision against the dismissal by the first appellate Court of his appeal against the trial Court's order of 31st May, 1972 dismissing his restoration application. In support of the petition Mr. Nasim Farooqi, argued at great length about an endorsement in the trial Court's diary of 27‑9‑1971. Therefore, we would recall here that this endorsement was made in the diary on the day on which the case had been received in the trial Court after the remand order passed by the first appellate Court and according to Mr. Nisar Ahmad the endorsement was in the handwriting of the petitioner or his Advocate or his Advocate's clerk and the view taken by the trial Court was that this endorsement was' sufficient to prove that the petitioner had received notice from the trial Court of the date in his suit after the remand of the suit to the trial Court by the first appellate Court. Therefore, Mr. Nasim Farooqi vehemently submitted that the view of the trial Court was based on conjecture, because no attempt had been made to prove that the signature in the diary of the Court was in the handwriting of the petitioner or of his Advocate or of his Advocate's clerk. The submission is correct, but nothing whatsoever turns on it, because we are satisfied, after hearing Mr. Nisar Ahmad, that the petitioner's Advocate, one Mr. Mahmoodi, had received notice of the next date in the suit which was for the 30th of October, 1971. And as the petitioner's Advocate had received notice of the suit, he should have informed the petitioner and been present in Court on that day and if he or the petitioner had been present, the petitioner's suit would have not been dismissed for default. It is also relevant to point out here that the trial Court had adjourned the case three times because the petitioner and his counsel were absent, and it was only on the third occasion, namely, 4‑2‑1972, that the suit was dismissed for default. Now as the petitioner and his Advocate were absent thrice, this was prima facie gross negligence on their part, and no exception can be taken to the view of the trial Court in dismissing the petitioner's restoration. application on 31‑5‑1972. Mr. Nasim Farooqi attempted to overcome this difficulty by submitting that the Advocate, who had received the trial Court's notice for the next date in the suit, was engaged by the petitioner only for the appeal in the first appellate Court against the dismissal of the petitioner's suit on 27r3‑1968, therefore, this Advocate, Mr. Mahmoodi, had made an endorsement on the summons of the Court that the notice of the Court should be served directly on the petitioner. Mr. Nisar Ahmad admitted that Mr. Mahmoodi had made this endorsement on the summons of the Court but he pointed out that Mr. Mahmoodi had been engaged by the petitioner for prosecuting his suit and after considerable arguments Mr. Nasim Farooqi was compelled to admit that Mr. Mahmoodi had been engaged by the petitioner in the suit after its remand to the trial Court. Therefore, service on Mr. Mahmoodi was service on the petitioner and the dismissal of the petitioner's suit for default on 42.72 was the only proper order which the trial Court had 'to pass. Additionally, in dismissing the petitioner's appeal against this order of the trial Court, the learned VII Additional District Judge who dismissed this appeal observed:‑ "Even the service on the appellant has been held good in the order passed by the Hon'ble High Court in the revision application filed by the Advocate of the appellant." Although the petitioner' has found it convenient to suppress this order of the High Court Mr. Nasim Farooqi admitted that the observation of the learned VIIth Additional District Judge had reference to the High Court's order dated 17‑3‑1977 dismissing the first revision tiled by the petitioner in the High Court. We are constrained to express our regret that the petitioner has withheld the document which was obviously relevant the petition. Be that as it may, it is clear that the High Court's order of A 17‑3‑1977 has become final and is fatal to the petitioner's plea that. he had not been served with notice of the date in his suit by the trial Court. Therefore, there is no merit whatsoever in this submission of Mr. Nasim Farooqi. Mr. Nasim Farooqi then advanced an elaborate argument in support of the submission that the trial Court had erred in dismissing the suit on 4‑2‑1972 because that was not a date for the hearing of the suit. We are unable to understand this argument because Mr. Nasim Farooqi admitted that the suit had been remanded to the trial Court not only for the purpose of framing additional issues but also for the purpose of recording further evidence in some of these issues that had been framed in 1968. Therefore, this submission was rightly rejected by the High Court. Additionally, the question whether the petitioner's suit had been fixed for hearing or not is a question of fact, which cannot be determined without the record, and whilst the High Court had the benefit of the record, there are no documents before us to support Mr. Nasim Farooqi's argument on this aspect of the case. And on the other hand, the only ground on which the petitioner had sought the restoration of his suit was that he was illiterate and that he had not received any notice of the suit from the trial, Court after the remand of his suit to the trial Court. Additionally, the petitioner has also suppressed the memorandum of appeal filed by him in the first appellate Court against trial Court's order of 31‑5‑1972, but it is clear from the order of the VIIth Additional District Judge, who dismissed this appeal, that the plea that the date in the suit was not a date for hearing of the suit was not taken by the petitioner in the first appellate Court. It appears to have been taken for the fiat time in the High Court in a revision, therefore, on this ground also we cannot permit the petitioner` to press the petition for special leave on a question not raised in the two! Courts below. This petition is without merit and is dismissed. Petition dismissed.