2014 PLP 2085 (YLR)

NISAR HUSSAIN KHAN, J.

Instant appeal is directed against order of learned Civil Judges-XIV, Peshawar, dated 5-3-2013 whereby suit of the appellant was dismissed being defective.

2. Learned counsel for the appellant argued that appellant could not file amended plaint due to pendency of Civil Revision No.271 of 2013 before this court which was allowed on 28-6-2013, so the delay was not intentional as the appellant was pursuing the revision which was filed against dismissal suit of the appellant against defendant No.3 which matter was pending before this court.

3. As against that, learned counsel for the respondents argued that Order VI, Rule 18, C.P.C. provides just 14 days for amendment of the plaint and thereafter the court is empowered to dismiss the suit However, learned counsel for the respondent conceded that there is no provision for dismissal of the suit for defective plaint.

4. We have heard the learned counsel for the parties at length and have also gone through the record with their valuable assistance.

5. It appears from the record that Engineering University, Peshawar, filed a civil suit against three defendants including one father, two sons for recovery of Rs.15,55,030 along with US$ 1,98,333 with mark up at the bank rate. At the initial stage, suit of the plaintiff/appellant was dismissed against defendant No.3 for failure to point out the defendant to the Process Server and non-filing of complete address. The plaintiff filed an application for restoration of the suit against defendant No.3 which too was dismissed and the said order was questioned by the plaintiff/ appellant in C.R.No.271 of 2013 which after hearing the parties was allowed by this Court on 28-6-2013 and the suit against defendant No.3 was restored.

6. Record also suggests that during the pendency of proceeding, the plaintiff filed an application for amendment of the plaint which was allowed on 14-1-2013 but the plaintiff failed to file amended plaint which resulted into issuance of notice under Order VI, Rule 18, C.P.C. and thereafter the plaintiff did not file the amended plaint till passage of impugned order on 5-3-2013.

7. Main contention of the learned counsel for the petitioner is that as suit against defendant No.3 was dismissed and appellant was pursuing the C.R.No.271 of 2013 for restoration of suit against defendant No.3, so the amended plaint could not be filed. When the attested copy of the judgment of this court in C.R.No.271 of 2013 is put into juxtaposition with the impugned order, both reflect that the earlier C.R.No.271 of 2013 was filed against the order of the trial court dated 14-1-2013 whereby the application for amendment of the plaint was allowed and by the same order suit against defendant No.3 was dismissed in such a complex and anomalous situation, delay caused by plaintiff in filing amended plaint, though is somewhat unusual but keeping in view the complexity and intricate situation, the contention of the plaintiff/appellant in not filing the amended plaint well in time was something but natural. The procedural laws are enacted to advance the cause of justice and not to thwart the same and on the same principle, suit against defendant was restored by this court by allowing C.R.No.271 of 2013. While deciding this FAO, no contrary view with regard to the procedural law can be taken. Order VI, Rule 18, C.P.C. though provides a limitation for fling amended plaint within the prescribed time, but it nowhere empowers the court to dismiss the suit. The trial court should have proceeded with the original plaint. The learned trial court dismissed the suit on the ground of defective plaint. There is no such provision in the Code of Civil Procedure in this regard as well. Hence the impugned order is not sustainable.

8. For the reasons discussed above, this appeal is allowed, the impugned order of the trial court is set aside and the matter is sent to the trial Court to proceed with the matter in accordance with law. The pending lis is an old one, of the year 2007, thus the trial court is directed to dispose it of within a period of six months positively. JJK/169/P Appeal accepted.