2008 PLP 147 (MLD)

The facts narrated by learned counsel for the applicants and gleaned from the. record are that against the judgment and decree, dated 7-6-1982 passed by learned Additional District Judge-III, Muzaffargarh, two applicants, namely, Noor Muhammad and Mst. Bakhu of the instant review application, had filed a Civil Revision No.348 of 1982 against Muhammad Riaz respondent on 1-7-1982 in this Court which was admitted to regular hearing by order, dated 4-7-1982 by this High Court. On 12-10-1999, Mr. Abdul Rasheed Sheikh, Advocate for the petitioner while appearing had sought more time to prepare his brief as he was recently engaged, upon his request, the case was adjourned to 23-11-1999. On the aforesaid date, learned counsel for the petitioner had not appeared but had applied for general adjournment: The learned Single Judge in Chamber ordered the listing of the case in the third week of December, 1999. The case was so fixed on 23-12-1999 but no one had appeared no that date. So the case was dismissed for non-prosecution. To get the order, dated 23-12-1999 set aside, an application for restoration of the above-noted revision petition was moved by Noor Muhammad and other revision petitioners/applicants but that application was also dismissed after hearing the learned counsel on 7-3-2005 by our learned brother Mr. Justice Maulvi Anwarul Haq, J. Hence this review application.

2. Learned counsel for the applicants has raised the following points for consideration:-- (i) Civil Revision could not be dismissed due to default in appearance as it was an admitted civil revision for regular hearing. To support his contention, learned counsel for the applicants has referred to Muhammad Sadiq v. Mst. Bashiran and 9 others (PLD 2000 SC 820) and Al-Haj Muhammad Rafique v. Mst. Khalida Shehzadi (2003 CLC 559); (ii) There was a mistake of the Court as name of the learned counsel was not published in the cause list of 23-12-1999; (iii) Due to act of Court, no one is to be prejudiced is a rule of law. (iv) Where a decision is not considered and followed by a Court, review application can be filed and the order can be reviewed. Learned counsel has cited the following case-law, Syed Ashfaq Hussain Shah v. N.E.D. University of Engineering and Technology, Karachi and others (2007 SCMR 73).

3. We have considered the arguments of learned counsel for the applicants and have gone through the record of the case.

4. The first contention of learned counsel for the applicants that the civil revision cannot be dismissed in default of appearance of the petitioner, when it has been admitted for regular hearing, we would like to note that the rule laid down in Muhammad Sadiq v. Mst. Bashiran and 9 others (PLD 2000 SC 820) has been greatly misunderstood. In a civil revision filed by an aggrieved person, he has to point out illegalities, irregularities or the jurisdictional defects in the proceedings with regard to the orders passed by subordinate forums. Therefore, after a revision petition is entertained, Court would be exercising its supervisory jurisdiction to satisfy itself as to whether jurisdiction has been exercised properly or not by the Court below. From the above-noted rule, we find that a civil revision after it has been admitted becomes a matter between the higher and the subordinate Courts. It has also been laid down in many judgments of the Honourable Supreme Court that the supervisory jurisdiction conferred upon this Court under section 115, C.P.C. can be exercised in either way in the form of acceptance, rejection or passing of any other order as the Court thinks fit vide wordings of the section 115, C.P.C. itself: In other words, this is a discretionary jurisdiction vested with the Court of superior jurisdiction to correct jurisdiction wrongs or errors committed by lower Courts. But it cannot absolve the party who has to point out the irregularities and alleged illegalities committed by the subordinate Court, to appear and to point out those defects. If a party who has defaulted in appearance and is not ready to point out those alleged irregularities, jurisdictional defects and illegalities which the party considers fatal to his interest and is necessary for him to get it set aside, the party cannot blame the Court for the dismissal of such a civil revision. The party cannot be allowed to avail of and to take premium of his own negligence. For the negligence of a party, it is the party who has to suffer for that. When the party had not appeared, dismissal in default was in fact granting a chance and opportunity to the party to get it restored within a reasonable period of time. Even then, if party was not ready to point out those alleged regularities and defects in the impugned order and to assist the Court for that purpose, it was then within the discretion of the Court to decide it on merits, adjourn it, or to dismiss it in default of appearance. The Honourable Supreme Court has not laid down any hard and fast rule that in each and every case, a revision must be decided on merits. The following words of the apex Court in PLD 2000 SC 820 are important to be noted:-- "Thus it is advised that the Court after having entertained a civil revision, instead of dismissing in default, may make efforts to dispose it of in accordance with the parameters laid down in section 115, C.P.C." The judgment of 2003 CLC 559 is based upon the above noted judgment. Therefore, it need not to be dilated upon. The Court seized of the case in the given circumstances of a case would be best Judge as to whether the civil revision might be decided on merits or not?

5. In the instant case, learned counsel for the applicants had appeared on 12-10-1999 and the case was adjourned for 23-11-1999. It was for the party to appear on the date of 12-10-1999 and 23-11-1999 to obtain another date or to be aware of the result of the general adjournment submitted by the learned counsel. The party could not be absolved of appearance in the case on the date fixed by the Court because on the fixed date, the party had to appear and had to obtain the knowledge with regard to adjournment of the case. In the order, it was clearly mentioned that the case would be fixed in the third week of December, 1999. The party had to be conscious of the fact that the case was being adjourned on the basis of his request for adjournment, in such case the party had to show more care and caution to obtain information with regard to the fixation of the case thereafter. It is very strange that from 1999 to 2003 for more than three years, the party had remained dormant and had not contacted the office about the result of the adjournment. There is no explanation as to why the party had remained mum with regard to this long period of time uptil three years. This cannot be considered to be a bona fide act on the part of the party. As noted above, the case was adjourned for a specific date and from the specific date, the case was again adjourned for a specific week of a month. The point agitated that there was a mistake of the Court as the name of learned counsel for the applicants was not published in the cause list for 23-12-1999 was adverted to by our learned brother Maulvi Anwar ul Haq, J. and was not accepted. Therefore, the impugned order, dated 7-3-2005 cannot be set aside in this review jurisdiction.

6. In view of the above perspective, we are not inclined to accept this review petition because we are not sitting as an appellate Court over the order of our learned brother Maulvi Anwar ul Haq, J. Resultantly, this review application is dismissed. S.A.K./N-94/L Application dismissed.