2011 PLP 1822 (YLR)

CH. MUHAMMAD TARIQ, J.

This writ petition has been directed against judgment dated 17-4-2010 passed by learned Additional District Judge Depalpur, District Okara who dismissed the civil revision and maintained the order of learned trial Court.

2. The facts giving rise to the filing of this writ petition are that respondent No.1 filed a suit for declaration along with permanent injunction in which the present petitioner filed an application under Order I, Rule 10, C.P.C. for impleading him as a party which was dismissed on 28-7-2008 due to non-prosecution. On the next day, i.e. 29-7-2008, the petitioner appeared and came to know that his application under Order I, Rule 10, C.P.C. had been dismissed for non-prosecution on 28-7-2010. The petitioner filed an application on the same day, i.e. 29-7-2008 for restoration of the application on the ground that he could not appear on 28-7-2008 because of wrong noting of date but the learned trial court did not accept the genuine request of the petitioner and dismissed the application for restoration. The petitioner filed revision petition which met the same fate and the first revisional court also dismissed the revision petition vide order dated 17-4-2010. Hence this writ petition.

3. Learned counsel for the petitioner contends that the valuable rights of the petitioner are involved. The application under Order I, Rule 10, C.P.C. was dismissed for non-prosecution due to wrong noting of date. The petitioner filed application for restoration within the period of limitation but the learned courts below dismissed the application without appreciating the fact that if the application under Order I, Rule 10, C.P.C. is not restored, the petitioner will suffer irreparable loss. He prays that this writ petition be allowed and the impugned orders passed by both the learned courts below be set aside.

4. Conversely, learned counsel for the respondents has vehemently opposed this writ petition and has contended that it is evident from the record that the petitioner appeared in person when the case was adjourned and there is no question of wrong noting of the date. Learned counsel has further pointed out certain facts misrepresented by the petitioner and has further contended that after dismissal of the revision petition, writ petition is not competent, so it be dismissed.

5. Arguments heard. Record perused.

6. In para 5 of the application for restoration, the petitioner has levelled allegation against the Reader of the court that he under the influence of greed changed the date of hearing of the suit. While in the writ petition, the stance taken by the petitioner is entirely different. The order sheet annexed with the writ petition highlights that the petitioner was very much present in the learned trial Court when the case was adjourned, therefore, learned trial Court dismissed the application for restoration vide order dated 24-11-2008. After the dismissal of the application, the remedy available to the petitioner was to file an appeal but instead of filing an appeal, the petitioner assailed the impugned order of learned trial Court in revision petition. This fact was not considered by the first revisional court who decided the revision petition filed by the petitioner. The appeal is a statutory right which could not be substituted with revision petition. But neither the Court nor the learned counsel for the parties raised objections about the maintainability of Revision Petition. This defect is not curable in the writ petition.

7. In the above circumstances, the writ petition is without any merit. No interference is called for. Hence the writ petition is dismissed. A.R.K./G-72/L Petition dismissed.