2016 PLP 2023 (SCMR)

GULZAR AHMED, J.

This is a very unfortunate matter and has been lingering on for considerable time. The petitioner had filed suit, which was being contested by the respondents. On 08.10.2007 the trial court passed the following order:- "On a review of this case, the Courts finds the above suit is appropriate for seeking resolution through mediation. Since the parties in this case have shown their willingness to try mediation and also shown their readiness towards payment of required fees. Pursuant to the provision of Section 89-A read with order X rule 1A CPC, this case is, therefore, hereby referred for mediation to Karachi Centre for Dispute Resolution (KCDR) D 9/5, Park lane, Block 5, Clifton, Karachi (Telephone # 021 4214749). The parties are required to contact KCDR on or before 08.11.2007 along with the relevant record with regard to their claims, for further proceedings."

2. It seems that while suit was referred for mediation to KCDR and parties were directed to approach the KCDR for further proceedings but the suit continued to be fixed in Court and ultimately in absence of the parties it was dismissed for non-prosecution on 02.3.2009. The petitioner then filed an application for restoration of the Suit, which was dismissed vide order date 13.5.2010 as time barred. The petitioner then filed Civil Misc. Appeal, which was allowed vide order dated 10.02.2012 and suit of the petitioner was restored. The respondent filed Civil Revision Application in the High Court and by the impugned order dated 25.10.2013 same was allowed and the order restoring the suit was set aside.

3. We have heard the learned counsel appearing for the parties and have also gone through the record.

4. It is an admitted fact that dispute between the parties was referred for mediation to KCDR with directions to the parties to approach the KCDR for further proceedings. Such order of the court remained in field until suit came to be dismissed for non-prosecution. The very fact that parties were directed to appear before the KCDR for further proceedings apparently show that no proceedings in the suit was to take place rather it was to be done at KCDR. Once the suit was referred to the KCDR and there was no report of KCDR as to what had transpired in the proceedings before it, the Court in our view was not justified in dismissing the suit for non-prosecution as for doing so in the first place the court was required to have applied its conscious mind to the facts and circumstances of the case and not just to pass a mechanical order. It is apparent that suit was dismissed for non-prosecution when none of parties appeared before the Court. Respondent also did not inform the court of the proceedings before the KCDR nor anything in writing seems to be available before the Court. There was no intimation by the Court fixing the case for hearing and requiring the petitioner to appear before it along with its evidence. Thus, while matter remained pending before the KCDR for further proceedings in terms of order itself, it cannot be said that on 02.3.2009 when suit was dismissed for non-prosecution, it was fixed for hearing before the Court and therefore, such an order of the Court, in our view, is altogether without jurisdiction and void ab initio. In this regard Article 163 of Limitation Act providing 30 days for filing of application for restoration will not apply rather the residuary Article 181 of the Limitation Act will apply providing three years' time for filing the application for restoration. Thus, the application filed by petitioner was in time.

5. For the forgoing reasons we allow this appeal, set aside the impugned order and restore the order of appellate court that of restoring the suit. As the suit is of year 2002, we direct the trial court to expedite its hearing and dispose of the same preferably within a period of three months. Office is directed to communicate this order to the trial court within one week's time and trial court shall communicate next date of hearing to parties, which shall be within a period of fifteen days. MWA/T-7/SC Appeal allowed.