2022 PLP 139 (CLC)

JAMAL KHAN MANDOKHAIL, C.J.

Brief facts of the case are that the petitioners filed an application for the grant of letter of administration before the court of Civil Judge-VI, Quetta ("trial Court"), which was dismissed in default and for non-prosecution. The petitioners filed fresh application, which too was dismissed on 27.08.2019 on the ground that it was barred by the Order-IX, Rule 9, C.P.C. Feeling aggrieved, the petitioners challenged the order of the trial court by filing a revision petition before the court of the Additional District Judge-IV, Quetta, which was also dismissed on 28.11.2019, hence this petition. The learned counsel for the petitioner stated that the earlier application for the grant of letter of administration filed by the petitioner was in its initial stage and it was not contested by any person, therefore, it was not decided on merits, as such, the fresh application was not barred under Section 11 and Order IX, Rule 9 of the C.P.C. He added that their was no objection from any corner upon the grant of the certificate to petitioners, therefore, merely on technicalities, the petitioners cannot be non-suited. The learned counsel for the respondent showed no objection upon filing of the fresh application, provided it is decided in accordance with law and on merits. Heard the learned counsel for the parties and perused the record. It is an admitted fact that the earlier application for the grant of a letter of administration filed by the petitioners was dismissed in default and for non-prosecution by the trial court, by exercising power under Order IX Rule 8 of C.P.C., which is reproduced as under:- "

8. Procedure where defendant only appears.

Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder." The provision of Order IX, Rule 8, C.P.C. empowers the court to dismiss a suit when a defendants appears and a plaintiffs does not appears, when the suit is called for hearing. According to the provision of Section 295 of the Succession Act, 1925, if the proceeding for the grant of letter of administration is contested by an interested person, then the proceedings take the character of a regular suit, which shall be tried by the trial court in accordance with the provision of the Civil Procedure Code. In the case in hand, the proceedings were in its initial stages and there was no contest on behalf of any interested person, before it was dismissed in default and for non-prosecution, consequently, the proceedings did not attain the status of a civil suit. The trial court while dismissing the subsequent application, exercised the power under Order IX, Rule 9, C.P.C. according to which, "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". The said provision of law debars a plaintiff from bringing a fresh suit on the same cause of action, but as has been stated hereinabove that the earlier application filed by the petitioners was neither a suit, nor upon its dismissal, a decree was passed by the trial court, therefore, there was no suit decided. Similarly, fresh application filed by the petitioners was also not to be considered as suit, but the courts below have failed to consider the fact that even after dismissal of the earlier application in-default and for non-prosecution the fresh application does not come within the purview of Order IX, Rule 9, C.P.C. In this behalf reliance has been placed on the case reported in PLJ 2001 Magazine 372 SC (India) and AIR 1962 RAJ

139. Besides, the relief claimed for the grant of letter of administration is a continuous right, therefore, a fresh application can be filed despite dismissal of the earlier one. Reliance has been placed on the case reported in PLD 1967 SC

402. Under such circumstances, dismissal of the application for grant of a letter of administration, under Rule 9 of Order IX, C.P.C., by the trial court was illegal. Thus, the subsequent application filed under section 295 of the Succession Act, 1925 is quit competent. Without prejudice to above, even otherwise, the earlier application was not fixed for hearing as provided by Rule 8, C.P.C., therefore, dismissal of the application in default and for non-prosecution, without deciding the same on merits also does not come within the definition of suit decided, as such, it also does not hit by the provision of Section 11, C.P.C. and Order IX, Rule 9, C.P.C. Since, a valuable right of the petitioner is involved in the matter, which requires proper adjudication, therefore, the petitioner cannot be denied such right, simply on technicalities. The courts below did not consider the legal and factual aspects of the case and have non-suited the petitioner, which is an illegality, consequently, both the orders impugned are not sustainable. Thus, in view of above, the petition is allowed and the orders dated 27.08.2019 and 28.11.2019 passed by the courts below are set aside. The fresh application filed by the petitioners shall be deemed to be pending before the trial court, which is directed to proceed with the matter and to decide the same strictly in accordance with law and on its own merits. The petitioners should remain vigilant and to avoid unnecessary adjournments. ZH/111/Bal. Petition allowed.