2002 PLP 798 (SCMR)

NAZIM HUSSIAN SIDDIQUI, J.‑‑‑The petitioner seeks leave to appeal, under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, against the judgment, dated 14‑4‑2000 of learned Single Judge, in Chamber, High Court of Sindh passed in R.A. No. 128 of 1999, whereby the judgment dated 11-10‑1999 of learned IIIrd Additional District Judge, Karachi‑West, was upheld.

2. After hearing learned counsel for the parties and, having examined the record, this petition is converted into appeal and is being disposed of as such.

3. The appellant is a charitable trust and was created on 13‑11‑1984 by a registered deed of declaration. Its purpose is to carry out charitable activities for the benefit of Muslims of Karachi. The appellant is also recognized as such for the purposes of section. 47 of the Income Tax Ordinance, 1979. The respondent No.2, Karachi Metropolitan Corporation, allotted Plot No.ST‑1, measuring 13,977 square yards, in Sector 13‑A, Orangi Township, Karachi, hereinafter referred to as "the plot", to the appellant and occupancy value was paid on 10‑12‑1984. It is alleged that after taking over possession of the plot in the year 1984, the appellant planned to establish a college and a school thereon for Muslim girls. Till date, Rs.50,00,000 are alleged to have been spent on construction work over said plot.

4. On 20‑4‑1995, the appellant received an order of respondent No.3, K.M.C., Orangi Town, cancelling the allotment of said plot and also resuming the same. The order disclosed that the respondent No.2, as per resolution dated 29‑11‑1994, had cancelled said allotment. It also disclosed that the respondent No. 1 had approved above resolution of the respondent No.2. The appellant, being aggrieved by said order, filed the Suit No.249 of 1995 against the respondents before 1st Senior Civil Judge, Karachi, West On 16‑4‑1996, the application under Order XXXIX, Rules I and 2, C.P.C. was fixed for hearing, but the entire suit was dismissed for non‑prosecution by the learned 1st Senior Civil Judge by the order, which is as follows:‑‑ "Case called. None is in attendance from the plaintiff side, while matter is fixed for hearing of application under Order 39, rules 1 and 2, C.P.C. Since plaintiff side called absent, hence application under Order 39, rules 1 and 2, C.P.C. and suit dismissed due to non‑prosecution. " 5.On 21‑10‑1996, an application under Order IX, rule 9, C.P.C. was moved on behalf of the appellant for setting aside above order. Alongwith the application an application under section 5 of the Limitation Act was also tiled for condonation of delay in tiling said application. By order dated 16‑3 -1998, learned Senior Civil Judge dismissed said application.

6. Thereafter, the appellant filed fresh suit bearing No.476 of 1998, before said Senior Civil Judge, on the same fact and for the same reliefs, as were prayed in Suit No.249 of 1995. The respondents filed an application under Order VII, rule 11, C.P.C. for rejection of the plaint on the ground that the suit, prima facie, was barred by law. It appears that learned Senior Civil Judge rejected the plaint by judgment, dated 25‑2‑1999 and held that the suit was hit by the principle of res judicata'. The appellant preferred Civil Appeal No.29 of 1999 against above judgment and decree before IIIrd Additional District and Sessions Judge, Karachi‑West, who dismissed it vide judgment and decree, dated 11‑10‑1999. The appellant then filed Revision Application No. 128 of 1999 before the High Court, which too was dismissed by short order, dated 6‑4‑2000 and later on reasons were recorded in the judgment dated 14‑4‑2000, which has been impugned in this appeal.

7. It is contended on behalf of appellant that High Court erred in taking the view that the appellant's earlier suit was dismissed under Order IX, rule 8, C.P.C. It is also urged that said suit when dismissed on 16‑4‑1996, was not "called on for hearing" within the meaning of Order IX, Rule 8, C.P.C. Learned counsel submitted that on the date of dismissal, the matter was fixed only for hearing of application under Order XXXIX, Rules l and 2, C.P.C. He has argued that dismissal of entire suit due to non‑prosecution of injunction application, was contrary to settled law. He also argued that the bar contained under Order IX, rule 9, C.P.C. was not applicable to the appellant's subsequent Suit No.476 of 1998

8. Mr. Ainuddin, learned Additional Advocate‑General, Sindh, frankly conceded that the judgments of the Senior Civil Judge, Additional District Judge and of the High Court are not in accordance with law,

9. Mr. Manzoor Ahmed, learned counsel for respondents Nos.2 and 3, however supported the impugned orders/,judgments,

10. Order IX, C.P.C. deals with appearance of parties and consequences of non‑appearance. Where neither party appears when the suit is called on for hearing, the Court may make an order dismissing the suit. When the suit is dismissed under rule 2 or 3, the plaintiff may under rule 4 bring fresh suit (subject to law of Limitation) or he may apply for an order to set the dismissal aside. It appears that learned High Court treated the dismissal order, dated 16‑4‑1996 as an order under Order IX, rule 8, C.P.C. It is significant to note, that in the order, dated 16‑4‑1996, quoted above, nowhere it is mentioned that the respondents or any one of them was present, when said order was passed. Rule 8 can be invoked where only the defendant appears. In the instant case, the defendants/respondents were not present when order, dated 16‑4‑1996 was passed. Therefore, the case was covered by rule 3 and not by rule 8, a decree can be passed upon admission of the defendant about the claim of the plaintiff, either in full or in part and the suit could be decreed to the extent of the admission. Since Rule 8 was incorrectly applied, as such, rule 9 baring fresh suit could not be invoked. Beside, the order, dated 16‑4‑1996, only application under Order XXXIX, rules 1 and 2 could be dismissed and not the suit which was not called on for hearing on said date.

11. Dismissal of Suit No.476 of 1998, Order VII, rule 11, C.P.C. is not sustainable. The principle of res judicata, under the circumstances, is not attracted. Dismissal of earlier suit was against the provisions of Order IX, C.P.C. The issues raised in the earlier suit were not heard and finally decided.

12. Accordingly, we snow the appeal set aside the impugned orders/judgments of the Senior Civil Judge, Additional District Judge and of the High Court, restore the Suit No.476 of 1998 to its original position and direct the trial Court to decide it on merits according to law. The parties are left to bear their own costs. S.A.K./A‑182/S Appeal allowed.