2009 PLP 891 (YLR)

This petition arises from an order in Revision on 17-4-2004 passed by the 1st. Additional District Judge Karachi East dismissing the Civil Revision No.21 of 2002. Briefly the facts appear to be that the petitioner had filed Suit No. 293/1996 before this Court, which by operation of law stood transferred to District Courts. The file was received by the District Judge East who assigned it to the III-Senior Civil Judge Karachi East and fixed on 26-11-1996. As many as 14 Court, motion notices to the parties as well as their Advocates appear to have been issued (as is evident from the copies of the diaries filed on record) but neither of the parties cared to respond. Eventually the Court directed service through pasting by order dated 19-11-1998 and subsequently on 23-11-1998 when the matter was fixed, after examining the bailiff proceeded to dismiss the suit for non - prosecution on 24-11-1998.

2. The petitioner, however instead of attempting to seek restoration kept sleeping for another 2-1/2 years and the application was presented after 2-1/2 years of dismissal i.e. 22-5-2001 along with an application for condonation of delay. It was inter alia averred that the bailiff was not examined by the trial court. The two applications however, came to be dismissed vide orders dated 15-2-2002, which was questioned in revision which was dismissed vide impugned order.

3. Mr. Ali Mumtaz Shaikh learned counsel for the petitioner urged that the trial Court had erred in proceeding ex parte and the petitioner was prevented from contesting the matter or applying for restoration so late owing to complete absence of knowledge as the court motion notice had never been served. Apart from the fact that this position stands contradicted by the order of the trial court stating that the bailiff serving the notice had been examined, there seems to be no explanation whatsoever for the inordinate delay in applying for restoration. Indeed the applicant himself could not be absolved of the responsibility to act vigilantly and complete indifference for two and a half years was far too long to be explained away.

4. Learned counsel further argued that though the property in dispute was located in District South and the other cases filed by the petitioner were also tried by the court in that District. This matter on account of some mistake stood transferred to District East that was one reason for the petitioner's inability to pursue this case. Nevertheless, in the affidavit in support of the application for setting aside the ex parte dismissal the deponent has urged that another suit No.278/87 between the same parties had been transferred to the same court i.e. 3rd Senior Civil Judge, Karachi East. This prima facie establishes that it was not a case of one isolated suit being transferred to a wrong court and the petitioners could not be allowed to take advantage of their own negligence.

5. In any event it is well settled that this court in constitutional jurisdiction rarely interferes with concurrent findings duly recorded by civil courts and therefore, this petition is dismissed in limine. M.B.A./U-2/K Petition dismissed.