2015 PLP 2620 (YLR)

QALANDAR ALI KHAN, J.

This civil appeal is directed against the judgment and order dated 10-6-2013 of learned Civil Judge-XVII, Peshawar, whereby application of the appellant/ plaintiff for restoration of his suit was dismissed being time barred.

2. The appellant/plaintiff had lodged a suit against respondents Nos. 1 to 8 for recovery of Rs.5,55,00,000 (five corers and fifty five lacs), as damages for mental torture on account of embezzlement reports in the year 1985 by respondent No.1, Shamsher Ali, in his capacity as branch incharge of National Savings (Quomi Bachat) Centre. According to the appellant/ plaintiff, he had to endure physical and mental torture because of criminal case against him, which ultimately ended in his favour and he was acquitted, and appeals against his acquittal also could not succeed. His involvement and arrest in criminal case, and his removal from service, according to the appellant/plaintiff, caused him tremendous torture and agony, hence suit for damages amounting to Rs.5,55,00,000 (five Corers and fifty five lacs).

3. The record would reveal that having been instituted in the year 2003, the suit remained pending in the trial Court till such time the same was dismissed for want of prosecution for the first time on 6-4-2009, but was restored on the application of the applicant/plaintiff by the learned trial Court on 22-10-2009. The suit was once again dismissed for non-prosecution on 11-1-2012, but this time application for restoration was dismissed on the ground that the same was moved after 34 days i.e. beyond the prescribed period of limitation i.e. 30 days, and, that too, without any application for condonation of delay.

4. The appellant initially preferred appeal in the Court of learned District Judge, Peshawar, but the appeal was later on withdrawn on the ground that the learned Additional District Judge had no jurisdiction in a suit valued for the purpose of jurisdiction exceeding Rs.10,000,00 (Ten lacs). The appeal was dismissed as withdrawn on 22-7-2013, and the instant appeal was filed on 31-7-2013, inter alia, on the grounds that the suit remained pending in different Courts and was transferred from one Court to another but without notice to the appellant/plaintiff and that application for restoration was filed within time on 10-2-2012 but was returned to appellant/plaintiff for attachment of a copy of the impugned order dated 11-1-2012, and further that after doing the needful, the application was submitted after delay of two/three days, without application for condonation of delay, as the application had been submitted within time. The appellant has also moved application for condonation of delay along with the appeal on the ground that his application for restoration of suit was within time, having been submitted on 9-2-2012, after attestation of the affidavit on the same day, and further filing of appeal in this Court with an amount of delay was also condonable as he was pursuing his remedy in a wrong forum under the mistaken belief that the learned District Judge had jurisdiction in the matter.

5. Arguments of Mr. Ghulam Sabir, Advocate, for the appellant and Mr. Hamimullah, National Saving Officer (Legal) for respondents Nos.2, 3, 5, 7 and 8 heard, and record perused. It may be added here that neither counsel for the remaining respondents appeared, nor National Saving Officer (Legal) could arrange counsel for arguments.

6. Apart from the fact that law favours adjudication on merits (2010 SCMR 973), the application for restoration of suit, filed with delay of hardly four days, is worth consideration on the ground of transfer of suit from one Court to another during its pendency stretching over a period of around 09 years, particularly in the face of allegation that no notice was served upon the appellant/plaintiff after its transfer, by the transferee Court, notwithstanding the fact that this is not the first time that suit of the appellant/ plaintiff has been dismissed for want of prosecution.

7. It seems that the learned trial Court was largely influenced by the conduct of the appellant/plaintiff with reference to earlier dismissal of suit for non-prosecution. However, it does not appear akin to the spirit of justice to dismiss application for restoration on either of the grounds i.e. earlier dismissal of the suit for want of prosecution and delay of four days in submission of application for restoration of the suit, especially when the other party can be compensated by imposition of cost on the appellant/plaintiff for his such conduct.

8. Keeping in view the staggering amount of Rs. 5, 55, 000, 00 (five corers and fifty five lacs) claimed by the appellant/plaintiff in his suit for damages coupled with his conduct of non pursuing the case vigilantly and thereby causing untold hardships to the other side; though the appeal is accepted, together with acceptance of application for restoration of the suit, but subject to payment of cost of rupees Rs.50,000 (fifty thousand), to be paid in the trial Court at the time of restoration of the suit. MM/239/P Appeal accepted.