2001 PLP 2512 (YLR)

Malik Abdul Wahid for Petitioner. Nemo for Respondents. This single order shall dispose of the present Revision Petition (No. 1171 of 2001 ~ as well as the connected Revision Petiti m No. 1172 of 2001, as the common questions of law and facts are involved in both the cases.

2. Through the invocation of the revisional jurisdiction of this Court, under section 15, C.P.C., the petitioner has called in question order, dated 27‑6‑2000 passed by the learned Additional District Judge. Sheikhupura, whereby the learned Judge, dismissed the appeals on account of non- payment of costs of Rs.1,500 each.

3. Facts necessary for the disposal of the revision petitions, as discernible from the revision petitions, are that appeals filed by the petitioner, against the judgment and decree, dated 21‑9‑1987, were dismissed for non‑prosecution by the learned Additional District Judge, Sheikhupura, on 18‑7‑1988. The petitioner filed applications for the re admission of the appeals, but those, too, were dismissed by the learned Appellate Court on 12‑12‑1988. The petitioner, then, filed F.A.O. Nos. 191 and 192 of1989 challenging the said order, which were accepted by this Court vide judgment, dated 25‑3‑1998 with the direction to the learned First Appellate Court to decide the restoration applications after recording the evidence of the parties. In pest‑remand proceedings, the learned District Judge, framed the issues, recorded the evidence and restored the appeals of the petitioner subject to the payment of costs of Rs.1,500. each, vide order, dated 16‑2‑1999. The revision petitions then narrate that the respondents filed Civil Revision No.369 of 1999, against order dated 16‑2‑1999, but the same was dismissed by this Court on 16‑2‑1999. When the appeals came up for hearing before the learned Additional District Judge, Sheikhupura for final hearing he while noticing .that the costs of Rs.1,500, which was condition precedent for the restoration of the appeals, has not been paid, thus, the learned Judge while observing that terms of the conditional order has not been complied with, proceeded to dismiss the appeals on this sole ground, vide impugned order dated 27‑6‑2000, hence, the present revision petition.

4. Learned counsel for the petitioner has contended that as no time for the payment of the costs was fixed by the learned District Judge, while re‑admitting the appeals vide order dated 16‑2‑1999, therefore, non- compliance cannot be attributed to the petitioner. It is argued that the petitioner was and is still ready and willing to comply with the orders and to pay the costs of Rs.1,500 but the learned Appellate Court, without providing any opportunity to the petitioner for the compliance of the order dismissed, the appeals in haste on this short ground which is not sustainable in law.

5. Notices were issued to the respondents for 24‑7‑2001 and also for today. Office has reported that the respondents have been served, but nobody has entered appearance on their behalf, hence, they are proceeded ex parte.

6. I have examined the order, dated 16‑2‑1999 passed by the learned District Judge, Sheikhupura, whereby the appeals, filed by the petitioner, were restored subject to payment of costs of Rs.1,500 each and the same were entrusted to the learned Additional District Judge, Sheikhupura, for their disposal on merits. Perusal of the said order manifests that the learned District Judge while levying costs, did not provide any time frame for the payment of the same nor any period was specified in the said order. In their scenario, the petitioner was under obligation to pay the amount of costs before the final hearing of the appeals. Moreover, it is the case of the petitioner that she was and is ready and willing to pay the said costs to the respondents, but at the first instance, the respondents challenged the said order by way of filing Revision Petition No.369 of 1999 in this Court and after the dismissal of this revision petition, the respondents as well as their learned counsel avoided to receive the same. In support of this, the petitioner has furnished on record two affidavits of the learned Advocates namely, Ch. Abdul Ghafoor and Raja Waheed Akram Khan, who have categorically stated that the costs was offered to the learned Court as well as to the respondents, but they refused to accept the same whereas the petitioner was ready and willing to pay the costs. There is no rebuttal of the said affidavits on record, which under the law will deem to be correct.

7. Even otherwise it would be too harsh to pass such an order for the dismissal of appeals only for non‑payment of a paltry sum of Rs.1,500 as costs. Initially the petitioner filed appeals against the ex parte decree which were dismissed for non‑prosecution, the restoration applications also met the same fate and the petitioner had to come to this Court for the redressal of his grievance. In post‑remand proceedings, the evidence was recorded and the appeals were re‑admitted subject to payment of costs of Rs.1,

500. It cannot be comprehended that the petitioner, who has gone into such a grind since the year 1987, will avoid to pay costs of Rs.1,500.

8. Another aspect of the case is that no period for the payment of costs of Rs.1,500 was fixed by the learned District Judge, while ordering for the restoration of the appeals, and the petitioner Was ready and willing to pay the costs of Rs.1,500, therefore, while following the dictum laid down in Qamar Zaman and others v. Musamir Shah (2000 SCMR 1730), I am constrained to hold that the impugned order is not sustainable in law.

9. It has time and again been held by the superior Courts of this country that the lis should not be knocked out on technical grounds but the endeavours of the Courts should be to decide the matters, involving valuable rights of the parties, on merits and party to the litigation should not be non -suited on mere technical grounds. From the bare perusal of the impugned order, it is evident that the same has been passed on hyper technical ground without providing any opportunity to the petitioner to comply with the terms of the orders of learned District Judge. The petitioner who is litigating the matter since, 1987, obviously after spending a considerable time and money in contesting the matter, has been non‑suited on account of non‑payment of costs of only ks.1,500.

10. In view of the above findings and conclusion the impugned order, dated 27‑6‑2001 passed by the learned Additional District Judge, Sheikhupura, is exceptionable, not sustainable in the eyes of law and definitely calls for interference by this Court, in exercise of its revisional jurisdiction, thus,' the revision petitions are accepted and the impugned order is set aside. The result would be that the appeals filed by the petitioner, shall deem to be pending before the learned District Judge, Sheikhupura, who shall. decide the same after hearing both the parties, obviously in accordance with law, within a period of two months from the receipt of this order. Parties are directed to appear before the learned District. Judge on 10‑9‑2001 on which date, the petitioner shall pay the cost to the respondents and in case of refusal, they will deposit the same in treasury on the same day. Parties are to bear their own costs. Q.M.H./M.A.K./K‑86/L Order accordingly.