2007 PLP 553 (CLC)

MAULVI ANWARUL HAQ, J.

This judgment shall decide Civil Revision No.2024 of 2005 as also Writ Petition No.12966 of 2005 as common questions are involved.

2. For the order I propose to pass in these cases, the reference to detailed pleaded facts is not necessary. Suffice it to say that Mst. Karamate Bibi petitioner in this civil revision and Mst. Azmat Bibi petitioner in Writ Petition No.12966 of 2005 filed a suit for possession of suit-land, purchased by respondent No.1 vide Mutation No.1025 attested on 26-1-2001. Part of the land was further transferred to respondents Nos.2 and 3 by respondent No.1 vide Mutation No.1129 attested on 2-3-2001. The suit was contested by the respondents Nos.1 to

3. Issues were framed on 21-7-2001. Later, the issues were amended and recast on 19-9-2003. The case was being adjourned for recording evidence of the said plaintiffs when on 29-5-2004 their evidence was closed and the suit was dismissed. The plaintiffs filed a first appeal which was allowed by a learned Additional District Judge, Jaranwala, on 27-1-2005. He remanded back the ease to the learned trial Court directing the parties to appear on 10-2-2005 and further directing the plaintiffs to produce their evidence on the said date. It was further observed that in case the plaintiffs failed to produce their entire evidence on the said date the trial Court will be justified in closing their evidence. The costs of Rs.5,000 were imposed. On 10-2-2005 Mst. Azmat Bibi along with Syed Shahbaz Haider Sabzwari, Advocate, appeared while Qazi Majid Iqbal, Advocate, appeared for respondents Nos.2 and 3 and stated that the power of attorney for Asghar respondent No.1 has already been filed in the appeal Court. It was noted that no one is present for Karamate Bibi. It was further noted that Azmat Bibi is present along with three witnesses. The costs of Rs.5,000 had been paid to Qazi Majid Iqbal, Advocate. It was then ordered that since no one is present for Karamate Bibi, the suit to her extent is dismissed for non-prosecution. It was further observed that since evidence is not present on her behalf, the suit shall be deemed to have been dismissed under the contents of the remand order. It was then noted that the Court time is over and both the parties agreed to adjournment. The case was accordingly adjourned to 26-2-2005.

3. Against this order, both the ladies filed a first appeal which has been dismissed by a learned Additional District Judge, Jaranwala, on 11-5-2005. Against these two judgments, Civil Revision No.2024 of 2005 has been filed.

4. On the said adjourned date i.e. 26-5-2005, Mst. Karamate Bibi filed an application for permission to place on record the list of witnesses. This application was dismissed. Against this order, civil revision was filed which has been dismissed by a learned Additional District Judge, Jaranwala, on 11-5-2005. Against these orders, Mst. Azmat Bibi has filed Writ Petition No.12966 of 2005.

5. Qazi Muhammad Arshad Bhatti, Advocate/learned counsel for the petitioners in both these cases contends that the suit could not have been dismissed for non-prosecution or for absence of evidence. Both the petitioners were represented by Syed Shahbaz Haider Sabzwari, Advocate, who has filed his power of attorney in the Court of appeal. Learned counsel complains that whereas the respondent No.1 was marked present for the same reason i.e. the filing of power of attorney in the course of appeal, the same principle was not applied to the petitioners. He also refers to Order IX, rule 10, C.P.C. to urge that the impugned orders are without lawful authority, while pressing the writ petition he contends that sufficient cause had been shown for non-filing of the list of witnesses and the petitioners have been disallowed to lead their evidence on hyper-technical ground. The contesting respondents Nos.1 to 3 are represented by Syed Tahir Abbas Kazmi, Advocate, whose name stands duly listed in the cause list for today. The case has been repeatedly called but neither the said respondents nor the learned counsel has turned up. They are accordingly proceeded against ex parts.

6. I have gone through the copies of the record, appended with both these cases, with the assistance of learned counsel present. In the matter of civil revision, Order IX, rule 10, C.P.C. governs the matter when one or more of several plaintiffs are absent. I deem it appropriate to reproduce the said provision of law hereunder:-- "

10. Procedure in case of non-appearance of one or more of several plaintiffs.

Where there are more plaintiffs than one, and one or more of them appear, and the others do not appear, the Court may, at the instance of the plaintiff or plaintiffs appearing, permit the suit to proceed in the same way as if all the plaintiff's had appeared, or make such order as it thinks fit." It will be seen that unlike Order IX, rule 8, C.P.C. which deals with a case where no one is present for the plaintiffs. Under Order IX, rule 10, C.P.C., the Court has the discretion to proceed at the instance of the plaintiff present in Court. I have already noted above that Mst. Azmat Bibi was present in Court along with a counsel whose power of attorney on behalf of Karamate Bibi was present in the appeal Court. It is apparent on the face of the record that the said lady present in Court did insist that the suit should be proceeded with in terms of Order IX, rule 10, C.P.C. However, the learned trial Court proceeded to dismiss the suit for non-prosecution. The witnesses were recorded on the adjourned date and a bare perusal of their statements would show that they deposed in accordance with the contents of the plaint filed by both the said ladies. I, therefore, do find that the learned trial Court has acted without jurisdiction while dismissing the suit for non-prosecution to the extent of Kararnate Bibi and the learned Additional District Judge has acted in the same manner in ignorance of the said statutory provisions.

7. Now so far as the writ petition is concerned, the only reason stated for dismissing the application for filing of list of witnesses was that the matter is governed by the direction of the learned Appellate Court. This may be so but it is apparent on the face of the record that those directions pertain to the date fixed by the learned Additional District Judge i.e. 10-2-2005. The case stood adjourned and it was on the adjourned date that the evidence was recorded. This being so, when the ladies have made out a good cause for non-filing of the list of witnesses, the learned Courts below have acted without jurisdiction in refusing their prayer.

8. The civil revision as well as the writ petition are allowed and the impugned orders being without jurisdiction and without lawful authority are set aside. The result would be that the order dismissing the suit for non-prosecution to the extent of Karamate Bibi shall stand set aside and the remaining evidence will be recorded after giving an opportunity to the plaintiffs to summon and produce the witnesses mentioned in the list, if not already recorded. This will further be subject to payment of Rs.2,000 as costs to the contesting defendants in the case. No order as to costs in these cases.

9. A copy of this judgment be immediately remitted to the learned trial Court. F.B./K-72/L Petitions allowed.