P L D 2021 Supreme Court 761 (PLP)

IJAZ UL AHSAN, J.

Leave to appeal is sought against a judgment of the Lahore High Court, Lahore dated 04.06.2020 ("Impugned Judgment"). Through the Impugned Judgment, a civil revision petition (Civil Revision No.226132 of 2018) filed by the Respondents was allowed, in consequence of which, the judgment dated 03.07.2018 passed by an Additional District Judge, Sargodha was set aside and the order dated 26.01.2018 passed by the Senior Civil Judge (Judicial), Sargodha was restored. As a result, the application for restoration of a suit filed by the petitioners was dismissed.

2. Briefly stated the facts necessary for disposal of this lis are that the predecessor-in-interest of the petitioners filed a suit for specific performance of an agreement to sell dated 23.04.2004. It was asserted in the plaint that Respondents Nos. 2 and 3 being owners of a petrol pump had entered into an agreement to sell through their attorney namely Mazhar Ali Khan for sale of the same in favour of the predecessor-in-interest of the petitioners for a total sale consideration of Rs.50,00,000/-. A sum of Rs.2,500,000/- was allegedly received as earnest money through a cheque. The remaining sale consideration was required to be paid till 20th November, 2004. Alleging failure to perform their part of the agreement despite offer, the predecessor-in-interest of the petitioners sought a decree for specific performance against the Respondents. The suit was resisted by Respondents Nos.2 and 3 by way of filing written statements in which they controverted the assertions made in the plaint.

3. It is significant to note that initially Respondent No.1 (Ejaz Ahmed) who had purchased the property through a duly registered sale deed had not been impleaded as a party. However, through order dated 29.06.2011 an application under Order I, Rule 10, C.P.C. filed on his behalf was allowed and he was arrayed as one of the defendants in the suit. It may also be noted that initially the suit was filed as far back as 19.04.2005. The plaint was later amended. However, nothing turns on that fact. The suit was ultimately dismissed for non-prosecution vide order dated 21.12.2016. An application seeking restoration of the suit was filed, but it was dismissed by the Senior Civil Judge (Judicial), Sargodha. The petitioners were aggrieved of such dismissal and filed an appeal which was heard by an Additional District Judge, Sargodha who accepted the same vide judgment dated 03.07.2018. Respondent No.1 was aggrieved of the said judgment and approached the High Court in its revisional jurisdiction under section 115, C.P.C. The civil revision was allowed vide impugned judgment dated 04.06.2020 in the manner noted above. Hence, this petition.

4. The learned ASC for the petitioners submits that the High Court has not considered the case of the petitioners in its true perspective. It has lost sight of the fact that the application for restoration of the suit was filed within time. He further maintains that dismissal of the suit by the Senior Civil Judge, Sargodha was patently illegal and the order of dismissal of the application for restoration of the suit suffered from legal errors. He further maintains that the High Court has not given due weight to the fact that Respondents Nos. 2 to 4 who were the real owners of the property or their attorney had not challenged the same and that it was only Respondent No.1 who was subsequently impleaded as a defendant in the suit had challenged the same before the High Court. He further maintains that it is a settled principle of law that cases must be decided on merits and litigants should not be non-suited on the basis of technicalities. He finally submits that a sum of Rs.2,500,000/-, which constituted the balance sale consideration had been deposited in Court pursuant to an order passed by the High Court. This fact established bona fides of the petitioners. As such, the suit of the petitioners was liable to be restored and decided on merits.

5. The learned ASC for the Respondents on the other hand has vehemently opposed the petition and has defended the impugned judgment. She maintains that the learned High Court has gone deep into the specific facts and circumstances of the case and has come to the conclusion that the petitioners had failed to satisfy the test of, "sufficient cause" for non-appearance which is sine qua non for seeking restoration of a suit which is dismissed for non-prosecution. She further submits that bare perusal of the application for restoration of the suit clearly and unambiguously shows that the petitioners had failed to disclose any cause let alone sufficient for their own non-appearance or that of their counsel. Consequently, the learned High Court had valid reasons and a lawful justification to pass the impugned judgment in which settled principles of law have been correctly applied to the facts and circumstances of the case. She further submits that the petitioners have not pointed out any legal defect in the impugned judgment of the High Court that may constitute basis for grant of leave to appeal in this matter.

6. We have heard the learned ASCs for the parties at considerable length. We have also scrutinized the entire record of the case which has been placed before us by way of this petition as well as C.M.As. Nos.1958-L and 2314-L of 2020.

7. The record indicates that the suit for specific performance was initially filed on 19.05.2005. We have noted that despite the fact that the suit was for specific performance of an agreement involving a valuable property, the plaint was deficient insofar as Court fee in the sum of Rs.15,000/- was not paid at the time of filing of the suit. It was subsequently made up on account of an order passed by the Court. A perusal of the order sheet reflects that issues were framed in the matter on 20.06.2006 and thereafter the case lingered on till 21.12.2016 that is to say for about ten years without any evidence being recorded. It is true that in the meantime, some of the parties to the suit died and their legal heirs had to be impleaded. But that hardly explains utter lack of progress in the suit for over ten years. We have gone through the order sheet of the trial Court which has been placed on record by the learned counsel for the Respondents through C.M.A. No.2314-L of 2020. It paints a dismal picture of carelessness, negligence and lack of diligence on the part of the petitioners and their counsel. Between 2014 to 2016, there were 56 dates of hearing. Nobody appeared for the petitioners on 5 dates of hearing, only the Clerk of the learned counsel appeared on 8 different dates (which also constitutes non-appearance) and multiple "last and final opportunities" were granted by the Court to the petitioners to file replies to applications and other pleadings from time to time. We may note that the practice of granting multiple "last and final opportunities" has strongly been deprecated by this Court on repeated occasions. Reference may be made to Moon Enterpriser CNG Station v. Sui Northern Gas Pipelines Limited (2020 SCMR 300). This practice must stop forthwith and the trial Courts must implement judgments of this Court in letter and spirit as the same are binding on them in terms of Article 189 of the Constitution and failure to comply can entail serious penal consequences for judicial officers failing or refusing to follow and implement clear and categorical judgments and orders of this Court.

8. The record also indicates that order dated 21.12.2016 was not the only order whereby the suit of the petitioners was dismissed for non-prosecution. As a matter of fact, even earlier the suit was dismissed for non-prosecution on 28.01.2014 and an application for its restoration was moved by the petitioners, which was contested by the Respondents. However, on the basis of a conceding statement made on behalf of the Respondents, the suit was restored subject to payment of costs in the sum of Rs.1000/- vide order dated 19.11.2016. We have specifically asked the learned ASC for the petitioners if the costs had been paid. He has frankly conceded that such costs were not paid but has offered to pay the costs now, which to our mind is rather late in the day. That was not all. The suit was again dismissed due to non-prosecution vide order dated 21.12.2016. This was followed by an application seeking restoration of the suit. This application was moved by one of the legal representatives of the original petitioner who had since passed away. The application was resisted by the Respondents and was dismissed by the Senior Civil Judge (Judicial), Sargodha on 26.01.2018 by way of a well reasoned order.

9. The questions of dismissal of suits and applications for restoration of the same are dealt with by the provisions of Order IX, Rule 9, C.P.C. For ease of reference Order IX, Rule 9(1) being relevant is reproduced below: "Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks it and shall appoint a day for proceeding with the suit." A bare perusal of the aforenoted provision of law makes it abundantly clear that an order of dismissal can be set aside by the Court if the applicant satisfies the Court that there was sufficient cause for his non-appearance when the suit was called for hearing. And if the Court comes to the conclusion that there was sufficient cause for non-appearance of the party, it may make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit.

10. As noted above, in the first instance, the suit of the petitioners was dismissed for non-prosecution on 28.01.2014 and was conditionally restored vide order dated 19.01.2016 on the basis of a conceding statement of the Respondents. However, such restoration was conditional upon payment of costs which were admittedly never paid by the petitioners. Further, at no stage was any application moved seeking extension of time for payment of costs. Strictly speaking and on the basis of principles of law laid down by this Court in Muhammad Arshad & Co v. Zila Council (2006 SCMR 1450), it is settled law that where revival of the suit is based upon a conditional order and such condition is not fulfilled by the Applicant, for all intents and purposes the suit does not get restored. Even if we were to ignore this lapse on part of the petitioners as well as the learned trial Court which failed to notice the non-fulfillment of the condition imposed in its order, the lack of diligence on the part of the petitioners in pursing their suit is self evident from the fact that the suit was dismissed for non-prosecution again, a second time, on 21.12.2016. Although as pointed out by learned ASC for the petitioners, the restoration application was filed within time but mere filing of a restoration application was in our view not sufficient. It was incumbent upon the petitioners to satisfy the Court that they were prevented by sufficient cause to attend the Court on the day that the case was fixed for hearing.

11. A perusal of the restoration application shows that such "sufficient cause" was spelt out in the application in the following terms: (that on account of important business neither the petitioner nor his counsel could appear in the suit in question on the date fixed for hearing) We are afraid that despite an effort made on the part of learned ASC for the petitioners to convince us that this phraseology constitutes "sufficient cause" and fulfills the requirements of the law, which should have satisfied the Court, we have been unable to persuade ourselves to agree with his reasoning. We find that the application was based upon unspecific, vague and generalized assertions which cannot by any stretch of the language be termed as sufficient cause. To make matters worst, the application was not supported by an affidavit. We are therefore in no manner of doubt that the petitioners failed to fulfill the basic requirements of Order IX, Rule 9, C.P.C. to make them entitled to the relief that they sought. Although the term sufficient cause has not been defined in the Code of Civil Procedure nor can a specific yardstick be put in place for determining what constitutes sufficient cause and what does not, it always depends upon the facts and circumstances of each case and it has to be left to the judicial conscience of the Court to make an informed assessment as to whether the cause disclosed by the petitioners was a reason good enough to satisfy the Court that it was beyond the reasonable control of the party concerned to appear before the Court on the date fixed for hearing.

12. In the case of Ata Ullah Malik v. Custodian Evacuee Property (PLD 1964 SC 236) this Court examined, discussed and elaborated the term, "sufficient cause" which effectively explained the meaning and scope of the said term in the context of Order IX, Rule 9, C.P.C. as follows: "Under section 5 of the Limitation Act there has to be a finding of sufficient cause. In pre-Partition India sufficient cause had been defined as circumstances beyond the control of the party and I do not know of any case wherein this definition of sufficient case had been rejected. However, at least in determining sufficient cause while dealing with the same expression in Order IX, Rule 8, C.P.C. and Order IX, Rule 3, C.P.C. the Courts had been lenient and had been condoning some negligence i.e. negligence to the extent to which it is regarded as human though they never condoned gross negligence. At the same time the Courts had always been strict in demanding proof of sufficient cause for every day which had expired after the ordinary period of limitation." Many years later in the case of Khadija Begum v. Yasmeen (PLD 2001 SC 355) this Court again reiterated the same principle which by now is accepted settled law.

13. A perusal of the application filed by the petitioners as well as the careless, negligent and casual manner in which it was drafted and pursued shows that they utterly failed to assert anything that may have even remotely pointed towards circumstances beyond their control which prevented them from attending the Court on the date fixed for hearing. It is evident from the record that the suit was filed in 2005, issues were framed in 2006 and for the next ten years not a single witness was produced by the petitioners notwithstanding the reasons for such delay which in any event do not furnish any justification for the litigation in question dragging on at a snail's pace, rather no pace at all, for years on end and without any conclusion in sight. We are of the view that this delay and lack of progress was largely attributable to the petitioners. Although, ideally speaking the policy of the law is that matters should be decided on merits instead of knocking out parties on the basis of technicalities, the provisions of Order IX, Rule 9, C.P.C. cannot lightly be brushed aside or rendered nugatory and inconsequential. A party claiming its benefit must establish sufficient cause, bona fides and due diligence all of which factors are conspicuous by their absence in the instant case.

14. The mode and mariner in which the petitioners pursued their case, their conduct spreading over decades and their abject failure to disclose any sufficient cause to satisfy the Court that there were reasons beyond their control for their failure to attend the Court on the date fixed for hearing to our mind disentitles them to a third chance.

15. The argument of the learned ASC for the petitioners that the owners of the disputed property did not challenge the judgment of the Additional District Judge, Sargodha dated 03.07.2018 and therefore the Civil Revision Petition filed by Respondent No.1 was somehow defective on that account has not impressed us. Respondent No.1 had admittedly purchased the property through a duly registered sale deed and had thereby acquired title in the same. He had obviously stepped in the shoes of the owners/title holders. He claims to be bona fide purchaser without notice. In addition, he was a party in the suit as well as the appeal. He was therefore perfectly within his rights to challenge the order of the Additional District Judge, Sargodha being an aggrieved party. The argument of the learned ASC for the petitioners is misconceived and without any substance whatsoever and is accordingly repelled.

16. The orders passed by the Senior Civil Judge as well as the learned High Court are well reasoned, based on the record and supported by the principles of law settled by this Court from time to time. The learned counsel for the petitioners has not been able to convince us that there is any factual, legal, procedural or jurisdictional error, defect or flaw in the impugned judgment that may furnish any basis, ground or justification for grant of leave to appeal in this matter. Further, we have not found any misreading or non-reading of the record by the High Court.

17. We are conscious of the fact that the petitioners had admittedly paid a sum of Rs.25,00,000/- as earnest money and an additional sum of Rs.25,00,000/- was deposited in Court pursuant to an order passed by the Court. They have not had access to the said funds during all this time and the value of the disputed property has multiplied expotentially. Therefore, in order to do complete justice, balance the equities and to ensure that the petitioner is treated fairly and justly, we direct that the petitioners shall be entitled to refund of the amount paid as earnest money and return of the money deposited in Court from the Respondents. In case, the amount deposited in Court has earned any profit/mark up, the petitioners shall also be entitled to recover the same. If it has not earned any profit/mark up, Respondent No. 1 (Ejaz Ahmed) shall pay profit/mark up at the bank rate as notified by the State Bank of Pakistan from time to time on the entire amount of Rs.50,00,000/- from the date of deposit of the amount in question till December 30, 2020. In case, the said amount is not paid within three months of the receipt of a certified copy of this order, the petitioners shall have a right to get this part of the judgment executed through legal processes.

18. For reasons recorded above, we do not find any merit in this petition. It is accordingly dismissed. Leave to appeal is refused. MWA/M-38/SC Petition dismissed.