2015 PLP 2274 (YLR)

ALI AKBAR QURESHI, J.

Despite repeated calls and keeping the case in wait, no one entered appearance on behalf of the respondents, therefore, the respondents are proceeded ex parte.

2. This Constitutional petition assails the order dated 2-4-2001 passed by learned Additional District Judge, Burewala, whereby the civil revision filed under Section 115, C.P.C. was dismissed on the ground, that the petitioners could not annex the certified copies of the pleadings and proceedings of learned trial Court.

3. In this case, the petitioners filed a civil revision under section 115, C.P.C. against an order dated 1-4-1999 passed by learned Civil Judge, Burewala through which the right of the petitioners/defendants to file the written statement was closed. The civil revision was dismissed by learned revisional Court/Additional District Judge on the ground, that the petitioners have failed to annex the certified copy of the pleadings and proceedings of learned trial Court, therefore, have failed to comply with the requirement of section 115, C.P.C.

4. Learned revisional Court/ Additional District Judge, it appears from the order, is not aware of the law declared by the Hon'ble Supreme Court of Pakistan in plethora of judgments, that the revision petition filed under section 115, C.P.C. if initially within time stipulated by the law irrespective of the fact, that the pleadings and proceedings of learned trial Court not attached, could not be dismissed summarily. In this respect, a renowned judgment of the Hon'ble Supreme Court of Pakistan may be referred which is cited as Riasat Ali v. Muhammad Jaffar Khan and 2 others (1991 SCMR 496). In this case, the Hon'ble Supreme Court of Pakistan while dealing this aspect of the case, has observed as under:-- "The Revision Petitions were well within time. The proper applications had been made. If the High Court considered that the non-filing of attested copies of certain documents could prove fatal to the case of the appellants, it should have, consistent with the language of the law as it stood after amendment, called upon the party to file those documents and waited till at least the period of limitation for dealing with the matter, unless of course, on examination of the grounds urged during the course of the arguments, it felt irresistibly that the jurisdictional aspects of the question raised, required examination and determination. To abstain from examining the jurisdictional aspects only because a party has not filed appropriate documents, without calling upon the party to make up the deficiency, would be a harshness and a technicality not visualized in exercising powers under Section 115 of the Code of Civil Procedure."

5. Another judgment cited as Mst. Sabiran Bi v. Ahmad Khan and another (2000 SCMR 847), the Hon'ble Supreme Court of Pakistan has gone to this extent, that if the revision presented by the petitioner within stipulated period of ninety days, could not be treated barred by time if the certified copy of record of learned trial Court is not annexed with the petition. The relevant part (at Page No.1790) is reproduced as under:-- "So far as this legal provision as referred by the learned counsel is concerned, there is no doubt about it but with reference to proposition under discussion in the instant case, it is suffice to observe that if a revision petition suffers from defects i.e. non-filing of pleadings etc. still it cannot be dismissed being barred by time and in such situation, at the best the petition could be treated as not maintainable. It is important to note that this Court had always emphasized for decision of cases on merits instead of disposing of the matters on hyper-technical grounds."

6. Another important aspect of the case, that learned revisional Court/ Additional District Judge at the preliminary stage while entertaining the civil revision, filed by the petitioners, issued the notices to the other side and also requisitioned the record. In these circumstances, it is to be adjudicated, that if the civil revision was filed initially within time and secondly when learned Additional District Judge, while issuing the notices to the other side also requisitioned the record, the same could be dismissed in view of the principle laid down by the Hon'ble Supreme Court of Pakistan in the judgments referred above. Even otherwise, when learned revisional Court while entertaining the petition at the preliminary stage, itself requisitioned the record, whether learned revisional Court could have decided/adjudicated the matter, the answer would be "yes".

7. Needless to observe, that it is well established principle of law, that the cases should be decided on merit instead of dismissing the same on hyper-technicalities, therefore, in this view of the matter, the order dated 2-4-2001 passed by learned revisional Court, is hardly sustainable in law.

8. Resultantly, the order dated 2-4-2001 passed by learned revisional Court, is set aside, the case is remanded to learned revisional Court to decide the revision strictly in accordance with law. No order as to costs. RR/P-20/L Case remanded.