2020 PLP 1652 (CLC)

MIRZA VIQAS RAUF, J.

The petitioner namely Ejaz Ahmad was one of the defendants in the suit instituted by respondent No.1 seeking specific performance of an agreement to sell dated 23rd April, 2004. It was asserted in the plaint that respondents Nos.2 and 3 being owners of a petrol pump have entered into an agreement to sell through their attorney i.e. respondent No.4, whereby they have agreed to sell the same to respondent No.1 with sale consideration of Rs.50,00,000/- out of which an amount of Rs.2,50,000/- was received as an earnest money through cheque whereas remaining sale consideration was to be paid till 20th November, 2004. Suit was resisted by respondents Nos.2 to 4, who submitted their respective written statements wherein they controverted the assertions contained in the plaint. It is noteworthy that petitioner was initially not impleaded as party, however, through order dated 29th June, 2011 on an application under Order I, Rule 10 of the Code of Civil Procedure (V of 1908) (hereinafter referred as "C.P.C."), he was arrayed as one of the defendants. Suit was ultimately dismissed for non-prosecution vide order dated 21st December, 2016. This followed an application seeking restoration of suit but the same was declined through order dated 26th January, 2018 by the learned Senior Civil Judge (Judicial), Sargodha. An appeal was filed by respondents Nos.1(i) to 1(iv) being legal representatives of Rai Muhammad Riaz before the learned Additional District Judge, Sargodha, which was accepted vide judgment dated 03rd July, 2018, hence this petition under Section 115 of "C.P.C.".

2. Learned counsel for the petitioner contended that suit was dismissed for want of prosecution through order dated 21st December, 2016 for the second time. He added that earlier on account of non-prosecution suit was dismissed, which was restored subject to costs but the costs was not paid. Learned counsel emphatically argued that application seeking restoration of suit does not disclose any sufficient cause and as such initially same was rightly dismissed by the learned Senior Civil Judge. It is contended that the learned Additional District Judge, while drawing a contra view has failed to assign any lawful reasoning and the impugned judgment is not tenable under the law.

3. Learned counsel for respondents Nos.2(i) to 3 has supported the contentions of learned counsel for the petitioner whereas this petition is seriously resisted by learned counsel for respondents Nos.1(i) to 1(iv). It is contended by learned counsel that application was moved within time and it was dismissed in an illegal and unlawful manner by the learned Senior Civil Judge. Learned counsel added that law favours the adjudication on merits and parties cannot be knocked out on the basis of technicalities. It is submitted that in the circumstances, learned Additional District Judge was justified to set at naught the order of the learned Senior Civil Judge through impugned judgment.

4. Heard. Record perused.

5. It is an admitted fact that initially suit was dismissed for want of prosecution vide order dated 28th January, 2014. An application was moved by respondent No.1 which was initially though contested but finally on the basis of a conceding statement suit was restored subject to costs of Rs.1,000/- through order dated 19th November, 2016. Suit was, however, again dismissed due to non-prosecution through order dated 21st December, 2016. This followed an application seeking restoration of suit which was moved by one of the legal representatives of original plaintiff Rai Muhammad Riaz, who died in the meanwhile. The application was resisted by the petitioner as well as the respondents Nos.2(i) to

3. By way of order dated 26th January, 2018 application was dismissed by the learned Senior Civil Judge (Judicial), Sargodha. This prompted the respondents Nos.1(i) to 1(iv) to prefer an appeal before the learned Additional District Judge, who accepted the same through impugned judgment dated 03rd July, 2018.

6. In terms of Order IX, Rule 9 of "C.P.C." where a suit is dismissed on account of non-prosecution of the plaintiff while invoking the provisions of Rule 8 the plaintiff is though precluded to institute a fresh suit in respect of the same cause of action but he can apply for an order to set the dismissal aside, if he satisfies the court that there was sufficient cause for his non-appearance when the suit was called on for hearing. The court on such an application can make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit.

7. As already observed that suit was earlier dismissed for want of prosecution on 28th January, 2014 but it was restored on the basis of conceding statement of the petitioner and respondents Nos.2 to 4 through order dated 19th January, 2016 subject to costs of Rs.1,000/-. It is not disputed that costs was ever paid by respondents Nos.1(i) to 1(iv). Even no application seeking extension of time for the payment of costs was ever moved by the said respondents. In such a situation when the revival of the suit was conditional and was made subject to payment of costs, so non-deposit of costs by respondents Nos.1(i) to 1(iv) would mean that suit was never restored. Guidance in this regard can be sought from "Muhammad Arshad & CO. through Muhammad Arshad v. Zila Council, Pakpattan Sharif, through District Nazim Pakpattan Sharif and others" (2006 SCMR 1450). In the case of "Muhammad Tariq Mansoori v. Abdul Ghani Mansoori and 3 others" (2013 CLC 1763) learned Sindh High Court has also adopted the same principles as in the case of Muhammad Arshad's supra.

8. Leaving aside above aspect it is observed that on the dismissal of suit for the second time through order dated 21st December, 2016 when an application seeking restoration of suit was moved, it was lacking any sufficient cause. The relevant extract from the same is reproduced below: It is clearly evident from the above that no reason for absence of respondents Nos.1(i) to 1(iv) or their counsel is mentioned and the application was moved on the basis of general and vague assertions. The application was even not supported by an affidavit of the learned counsel. In order to seek indulgence of the court in terms of Rule 9 of Order IX of "C.P.C." a plaintiff has to demonstrate sufficient cause for his non-appearance. The term "sufficient cause" has neither been defined in "C.P.C." nor specific yardsticks can be fixed for its determination but it always depends upon the facts and circumstances of each case and it will be left at the judicial conscious of the court to treat any reason as a "sufficient cause" or otherwise from the facts and circumstances.

9. In order to find out the literal or plenary meaning of the word "sufficient cause" we will have to seek guidance from the law dictionaries. Black's Law Dictionary 11th Edition provides the meaning of "sufficient cause" in the following manner :- "1. good cause. (16c) A legally sufficient reason. Good cause is often the burden placed on a litigant (usu. By court rule or order) to show why a request should be granted or an action excused. The term is often used in employment-termination cases.- Also termed good cause shown; just cause; lawful cause; sufficient cause. "Issues of 'just cause,' or 'good cause,' or simply 'cause' arise when an employee claims breach of the term of an employment contract providing that discharge will be only for just cause. Thus, just cause is a creature of contract. By operation of law, an employment contract for a definite term may not be terminated without cause before the expiration of the term, unless the contract provides otherwise."

2. PROBABLE CAUSE." Merriam-Websters's Dictionary of Law 17th Printing Harrisonburg VA August 2014 portrays the meaning of "sufficient cause" as noted below :- "sufficient cause: cause that is deemed enough to provide an excuse under the law: as a : GOOD CAUSE in this entry - often used in the phrase good and sufficient cause b : PROBABLE CAUSE in this entry"

10. The Hon'ble Supreme Court of Pakistan in the case of "Ata Ullah Malik v. (1) The Custodian Evacuee Property, West Pakistan and Karachi, (2) Sardar Battan Singh Harnam Singh, (3) S. Ishwar Singh Harnam Singh, (4 ) S. Amar Singh Ishwar Singh, (5) Rashid Merwari Irani and (6) Khuda Dad Ardsher Irani" (PLD 1964 Supreme Court 236) while pondering upon the word "sufficient cause" held as under :- "Under Section 5 of the Limitation Act there has to be a finding of sufficient cause. In pre-Partition India sufficient cause had been defined as circumstances beyond the control of the party and I do not know of any case wherein this definition of sufficient case had been rejected. However, at least in determining sufficient cause while dealing with the same expression in Order IX, Rule 8, C.P.C. and Order IX, Rule 3, C.P.C. the Courts had been lenient and had been condoning some negligence i.e. negligence to the extent to which it is regarded as human though they never condoned gross negligence. At the same time the Courts had always been strict in demanding proof of sufficient cause for every day which had expired after the ordinary period of limitation." In the case of "Mst. Khadija Begum and 2 others v. Mst. Yasmeen and 4 others" (PLD 2001 Supreme Court 355), while dealing with the expression "sufficient cause" the Honourable Apex Curt has held that sufficient cause means circumstances beyond control of party concerned.

11. It would not be easy to rebut the general principle that suit , should be decided on merits instead of knocking out the parties on the basis of technicalities but whenever a suit is dismissed in default it is obligatory for the plaintiff to mention a cause for such lapse, which can be treated as sufficient cause in ordinary prudence. Provisions of Order IX, Rule 9, of "C.P.C." cannot be dispensed with merely on the ground that it was desirable that suit should be decided on merits or that it was in interest of justice to restore suit. The Courts have to keep the scale of justice equal and the provisions of Order IX, Rule 9 of "C.P.C." cannot be used for the advantage of one party and disadvantage of the other in an omni bus fashion. Parties are obliged to exercise all diligence, while prosecuting their cause. If the provisions of Order IX, Rule 9 of "C.P.C." are to be pressed into service in a mechanical manner without satisfying judicial conscious as to whether application seeking revival of suit discloses sufficient cause, this will amount to give a premium to the plaintiff to play havoc with the process of the court, which is never the object of law. 12 In the wake of discussion made hereinabove it can safely be inferred that the learned Senior Civil Judge has rightly applied the law to the subject and application for restoration was dismissed through a well-reasoned order. On the contrary, learned Additional District Judge has proceeded totally on wrong premises and while allowing the appeal was oblivious of mandate of Order IX, Rule 9 of "C.P.C". Resultantly this petition is allowed as a sequel thereof, judgment dated 3rd July, 2018 is set aside consequently order dated passed by the learned Senior Civil Judge (Judicial), Sargodha is restored and application for restoration of suit stands dismissed with no order as to costs. ZC/E-1/L Revision allowed.