2003 PLP 288 (CLC)

The petitioners being dissatisfied with the impugned order dated 6‑4‑2002 passed by the learned IVth Additional District Judge, Shikarpur has preferred this revision application as their application under Order Q Fine 4 read with section 151, C.P.C. was dismissed in F.C. Suit No.62 of 1996 re: Munawar Isani and others v. Barkat Isani and others filed by the petitioners for restoration of the suit against the respondents/defendants Nos.5 to

9. It is prayed that the impugned order be set aside, hence suit may be restored against the respondents/defendants Nos.5 to 9 by remanding the case to the lower Court with directions to decide it on merits in accordance with law. The brief facts of the case are that petitioners/plaintiffs filed the above suit for declaration, cancellation and permanent injunction in respect of landed property in the Court of learned IInd Senior Civil Judge, Shikarpur on 18‑8‑1994 which was admitted and the respondents/ defendants were duly served. The defendants Nos.1 and 2 and other defendants .Nos.3 and 4 defended their case and filed their separate written statements in the Court. The defendant No.4 Arif Isani while acting as attorney of defendants Nos.5 to 9 adopted the same written statement as he had already filed on his behalf. The defendant No. 10 was proceeded as ex parte. The defendants Nos.1 and 2 who are the contesting defendants moved an application under Order 7, rule 11, C.P.C. in the trial Court, where after the suit was transferred to the Court of learned 1st Senior Civil Judge, Shikarpur by the learned District Judge, Shikarpur on administrative grounds. Soon after learned IInd Senior Civil .Judge, Shikarpur proceeded for training, hence the Court was lying vacant and suit was again transferred by the learned District Judge, Shikarpur to the learned IVth Additional District Judge, Shikarpur on administrative grounds, who heard the application under Order 7, rule 11, C.P.C. and rejected the plaint and as such the plaintiff filed a 1st Civil Appeal before this Court, which was allowed and the order of rejection of the plaint passed by the learned IVth Additional District Judge, Shikarpur was set aside and the case was remanded for disposal according to law. It is further stated that the plaintiffs and defendants are related inter se and originally belong to village Bado, Taluka Garhi. Yasin, District Shikarpur. The plaintiff No.1 who is father and next friend of his minor children i.e. the plaintiffs Nos.3 and 4 and is also attorney of plaintiffs Nos.2, 5 and 6 is a practising as an Advocate having his chamber at Karachi and has filed the above suit on his behalf and on behalf of the plaintiffs Nos.2 to

6. The defendants Nos. 1 to 3 are residing at Karachi while the defendant No.4 was residing at village Bado, the defendants Nos.5 to 9 have settled in U.S.A. after the remand of the above suit the learned IVth Additional District Judge, Shikarpur ordered for service of Court motion notice upon the plaintiffs and respondents/defendants. During the pendency of the suit, defendant No.4 Arif Isani died away, hence his legal heirs were brought on record. It is further stated that Court motion notice was duly served upon the plaintiffs and respondents Nos. I to 3 and legal heirs of defendant No.4, but the same could not be served upon the defendants Nos.5 to 9 having been residing in U.S.A. for which their addresses of the respondents were submitted in the Court. In view of hardship, the learned Will Additional District Judge, Shikarpur directed the plaintiffs to deposit Rs.10,000 in the Court towards publication charges for service of Court motion notice in daily English newspaper "The Nation". The plaintiff No. 1 could not deposit the said amount within time as he was at Karachi with the result that the suit against defendants Nos.5 to 9 was dismissed under Order 9, rule 2, C.P.C. on 20‑3‑2002 though the application for condonation of delay under section 148, C.P.C. had been filed and it was first application of this kind. The Advocate for the plaintiffs filed an application within time on 6‑4‑2002 for restoration of the suit against the defendants Nos.5 to 9 under Order 9, rule 4 read with section 151, C.P.C., but it was dismissed on the same day by the learned Judge, therefore, this civil revision has been filed against the impugned order dated 6‑4‑2002. It is inter alia contended that the respondents/defendants Nos.5 to 9 were proper and necessary party and had substantial interest, therefore, they were joined in the suit and respondent/defendant No. 1 had appeared through their attorney in the trial Court. It is further urged that service of the Court motion notice on the said respondents was necessary for which the plaintiff No. 1 had to deposit the publication charges and could not do so on account of his being busy in his profession and also being residing at Karachi. His counsel submitted an application for condonation of delay and extension of time to deposit the publication charges, but his request was turned down by the trial Court. It is argued by the learned counsel that learned Judge has seriously erred in dismissing the application of the plaintiffs under Order 9, rule 4 read with section 151, G.P.C. though valid and reasonable grounds were taken in the application, but the trial Court failed to exercise jurisdiction vested in him and has acted in the exercise of his jurisdiction illegally and with material irregularity. This revision application was filed on 30‑5‑2002 and the same was fixed on 6‑8‑2002 for Katcha Peshi and hearing of M.A. No.78 of 2002. On this date of hearing, the respondent No. 1 made his appearance on his own and placed several photostat copies of the applications and the orders passed thereon. The same documents were taken on record and after hearing the learned counsel for the applicants and respondent No.1, the order was reserved. The respondent No.1 has placed on record photostat copy of order dated 28‑8‑1997 passed by this Court in 1st Civil Appeal No. 1 of 1 997 and also copy of a judgment dated 20‑4‑2001 passed by this Court in 1st Civil Appeal No.1 of 1997, photostat copy of statement filed in F.C. Suit No.62 of 1996 in respect of correct addresses of the defendants Nos.5 to 10, P.S. copy of notice of Civil Transfer Application No. 1 of 2001, then a statement dated 11‑12‑2001 for not pressing the Civil Transfer Application No. 1 of 2001 and an order dated 1‑12‑2001 passed in Civil Transfer Application No. 1 of 2001 by the learned District Judge, Shikarpur and then another order passed by the learned District Judge, Shikarpur dated 26‑3‑2002 in Civil Transfer Application No.9 of 2002, Photostat copy of order dated ‑14‑12‑2001 in F.C. Suit No.2 of 1996 passed by IVth Additional District Judge, Shikarpur, then an application under Order 47, rule 1 read with section 151, C.P.C. in F.C. Suit No.34 of 1994 and F.C. Suit No.62 of 1996, then another copy of order dated 13‑3‑2002 passed by learned IVth Additional District Judge, Shikarpur. The respondent No.1 has also filed amended written statement on behalf of defendants Nos. 1 and 2 in F.C. Suit No.62 of 1996, another statement dated 14‑5‑2002 filed on behalf of defendant No.3 for adopting the same written statement, then a statement dated 20‑5‑2002 stating therein that the defendant No. 11 Mst. Mohsina Akhlaq is permanently residing with her husband as per address given in the title of the amended plaint. The respondent No.1 has also filed a copy of complaint made to Honourable Chief Justice, Sindh and copy to District Judge, Shikarpur and Will Additional District Judge, Shikarpur, then complaint was made by Barkat Ali Isani and lastly an application under section 148, C.P.C. filed by the Advocate for plaintiffs on 20‑3‑2002 and after hearing the counsel this application was disposed of on the same day by the learned IVth Additional District Judge, Shikarpur. In order to resolve the dispute in respect of dismissal of the application filed under Order 9, rule 2, read with section 151, C.P.C. for restoration of the suit against the respondents/defendants Nos.5 to

9. It will be advantageous to reproduce the order of the learned IVth Additional District Judge, Shikarpur in extenso:‑‑ "Heard Mr. Gural Das, Advocate for plaintiffs. The plaintiffs were directed to pay cost Rs.10,000 for publication in newspaper in News International for substitute service upon defendants Nos.5 to 9 because they reside in America. Sufficient time was already given to plaintiffs to pay the cost but cost was not paid, consequently the suit against defendants Nos.5 to 9 was dismissed on 20‑3‑2002 under Order 9, rule 2, C.P.C. The plaintiffs now moved this application to restore the suit on original stage against defendants Nos.5 to 9 and set aside the dismissal order. As such the‑plaintiffs had failed to pay the cost though sufficient time was given to them. Therefore, there is 110 fresh ground to restore the suit or to set aside the dismissal order. In view of the facts the application is dismissed." In view of the application filed under section 148, C.P.C on 20‑3‑2001 a detailed order was passed by the learned trial Court, while dismissing the application for condonation and extension of time to deposit the publication charges as the plaintiff Munawar Ali Issani is also attorney of other defendants is presently residing at Karachi and on his directions for depositing the amount, the same has not been complied as he was busy at Karachi. This application was filed on 20‑3‑2002 and it was observed in the order that earlier application for the same prayer an order was passed on 4‑12‑2001 whereby the plaintiffs were directed to deposit Rs.10,000 for publication in the International Newspaper for issuance of the notice to defendants Nos.5 to 9 because they are residing in U.S.A. From the perusal of the plaint, the addresses of the defendants Nos.5 to 9 are shown that all the defendants Nos.5 to 9 are residing in village Bado, Taluka Garhi Yasin, District Shikarpur and no address in respect of the respondents and it was never prayed to the Court that they have migrated to America nor any prayer was made to the amendment for the place of residence of the defendants Nos.5 to 9 in the trial Court. It is stated by the respondent No. 1 in fact at the time of filing of the present suit, the defendants were residing in U.S.A. It is observed by the learned trial Court that instead of paying the cost Advocate for the plaintiffs moved an application under Order 47, rule 1, C.P.C. to review the order dated 14‑12‑2001 and after hearing the Advocate, the review application was dismissed on 13‑3‑2002 and again the plaintiffs were directed to pay said cost within seven days up to 20‑3‑2002, but they did not pay the cost on the contrary learned counsel moved an application under section 148, C.P.C. to condone the delay in depositing the cost. In this matter there was directions of this Court while deciding the 1st Civil Appeal No. 1 of 1997 to decide the matter within six months. The appeal was disposed of on 17‑4‑2002 and it was directed by this Court to conclude the matter within six months, but due to act of plaintiffs/applicants that period had already expired. The plaintiffs were already directed two times to deposit the cost by orders dated 14‑12‑2001 and 13‑3‑2002, but they did not comply the orders, therefore, no justification was made. out by the trial Court to extend further time in depositing the cost, therefore, the suit against the defendants Nos.5 to 9 was dismissed under Order 9, rule 2, C.P.C. and the application moved under section 148, C.P.C. was rejected. It is urged by the respondent No.1 that orders dated 14‑12‑2001 and 13‑3‑2002 were never challenged before the competent forum. The plaintiffs/petitioners have challenged order dated 20‑3‑2002 with a prayer that the same may be set aside and the suit be restored to its original stage. 1 have gone through the impugned order and the other material brought on record by the parties and the judgment of this Court while deciding the 1st Civil Appeal No. 1 of 1997. The appeal was allowed and the impugned judgment was set aside and directions were issued to the trial Court to decide the matter pertaining to the title within six months. Since the plaintiffs were directed to pay the cost of Rs.10,000 for publication in newspaper for substitute service upon defendants Nos.5 to 9 as they were residing in America, but they did not do so. As per order dated 14‑12‑2001 the plaintiffs were directed to deposit cost of Rs. ten thousand for publication in newspaper for service upon defendants Nos.5 to 9 because they were residing in America, but from the perusal of the plaint, the plaintiffs have shown the A residence of defendants Nos.5 to 9 of village Bado, Taluka Garhi Yasin and in fact at the time of filing of the suit, the defendants were residing in America. The plaintiffs instead paying the cost moved an application under Order 47, rule I, C.P.C. to review the order, dated 14‑12‑2001. After hearing learned counsel, the review application was dismissed on 13‑3‑2002 and again the plaintiffs were directed to pay the said cost within seven days, but they did not pay the cost and on the contrary learned counsel moved an application under section 148, C.P.C. to condone the delay in depositing the cost, but the same was dismissed on 20‑3‑2002. In view of the conduct of the plaintiffs it is manifest that they remained indolent to pursue the matter. delinquently. It is relevant to mention here that there was directions of this Court while deciding the 1st Civil Appeal No. 1 of 1997 to decide the matter within six months and then direction was given on 17‑4‑2001 and the period of such direction had already been expired and the matter was being delayed on one ground and the other by the plaintiffs. As the plaintiffs have not shown sufficient cause for his non paying the postal charges for publication charges was required within the time fixed before issuance of the summons the Court has no option but to dismiss the suit. The petitioner can institute afresh case if' they feel so effected for adjudication of their legal right. The trial Court extended B sufficient time for compliance, but instead of making the compliance miscellaneous applications were filed by the plaintiffs for getting the order set aside or condonation of delay for depositing the cost of Rs.ten thousand. Learned counsel while filing the application under Order 9, rule 4 read with section 151, C.P.C. has stated that the respondents Nos.5 to 9 who were represented by attorney the defendant No.4 were required to serve Court motion notice afresh after the death of their attorney as the defendants Nos.5 to 9 were residing in U.S.A. and they could not serve in ordinary manner. It is further admitted by the learned counsel in the application that the plaintiff No. 1 who is also appearing on behalf of plaintiffs Nos.2 to 6. are residing at Karachi neither the Advocate for plaintiffs would contact with the plaintiff' No.1 nor he would contact with the respondents and as such the publication charges could not be ‑deposited within time. It is further admitted in the application that on 20‑3‑2002 Advocate for the plaintiff had gone to Kandhkot to conduct his cases and he authorized his junior alongwith application under section 148, C.P.C. for seeking condonation of delay and extension of time to deposit the publication charges, but the same was not allowed and the suit was dismissed against the defendants Nos.5 to 9 for non‑payment of publication charges. It is a rule of law that every case should be decided, on merits and not on technical grounds. Since the compliance of the order was not made by the plaintiffs to proceed the F case on merits. There was no option left to the trial Court to dismiss the suit under Order 9, rule 2, C.P.C. In view of the foregoing reasons, grounds urged by the respective parties, no sufficient cause has been shown by the petitioners for setting aside the impugned order. Resultantly the revision application is dismissed in limine as no notice was issued to the respondents, but respondent No.1 appeared on his own and on behalf of wife Mst. Hina Issani. S.A.K./M‑417/K Application dismissed.