2018 PLP 124 (CLCN)

CH. MUHAMMAD IBRAHIM ZIA, C.J.

The captioned appeal by leave of the Court has been filed against the judgment of the High Court dated 25.11.2015, through which the writ petition filed by the appellants herein, has been dismissed.

2. According to the case history, the appellants, herein, filed a suit for declaration-cum-perpetual injunction before the Civil Judge, Rawalakot which was dismissed for non-prosecution on 02.03.2011. They moved an application before the trial Court for setting aside the ex parte order. The learned trial Court vide order dated 06.10.2012 accepted the application subject to payment of Rs. 1500/- as costs within one week. It was further observed that on payment of the costs the file shall be restored and placed before the Court on 01.11.2012. The appellants filed an application on 01.11.2012 for depositing the costs with the prayer extension of the time. The said application was dismissed vide order dated 14.03.2013. Dissatisfied from the order, the appellants filed a revision petition before the District Court, Poonch which was made over to Additional District Judge. The revision petition was dismissed through order dated 12.07.2013 against which the writ petition filed by the petitioners also met the same fate through the impugned judgment.

3. Sardar Muhammad Suleman Khan, Advocate, the learned counsel for the appellants after narration of necessary facts submitted that the Courts below have not properly applied the judicial mind. The trial Court vide order dated 06.10.2012 accepted the application for restoration of the suit subject to payment of Rs.1500/- as costs. The order on the face of it clearly speaks that after hearing the arguments the judgment was reserved and announced later on. The trial Court on one hand without knowledge of the appellants and their counsel fixed the time for payment of costs as one week and at the same time the date of hearing in the suit was fixed as 01.19.2012. On the date of hearing, the appellants filed an application seeking permission to deposit the amount of costs in which they have mentioned that the order was not passed in their presence, thus, they have got no knowledge that they have to deposit the costs within one week time. In the application they have also mentioned regarding the Eid holidays and requested the Court to allow them to deposit the costs. The learned trial Court wrongly rejected the application, whereas, the revisional Court as well as the High Court also fell in error of law. He submitted that according to the celebrated principle of law, the Courts favour the adjudication of matters on merit rather to throw out the same on technical grounds. According to the stated facts, the appellants cannot be penalized as the order was passed in their absence and on the date of hearing they appeared and requested for depositing the costs. This aspect has not been properly attended by the revisional Court as well as the High Court. Therefore, for doing complete justice this appeal be accepted and the appellants be allowed to deposit the costs.

4. Conversely, Sardar Muhammad Ejaz Khan and Barrister Adnan Nawaz, Advocates, the learned counsel for the respondents forcefully defended the impugned judgments/orders and submitted that the appellants failed to comply with the Court order, thus, the trial Court rightly rejected the application. The order dated 06.10.2012 was self explanatory and Speaking. No violation of law has been committed by the Courts below. A legal right has been accrued in favour of the respondents, therefore, this appeal is liable to be dismissed.

5. We have considered the arguments of learned counsel for the parties and gone through the record. The order of the trial Court dated 06.10.2012 shows that the arguments were heard by the Court earlier and the order was subsequently announced as is mentioned in the order dated 06.10.2012 that:- Thus, to some extent the argument of learned counsel for the appellants finds support from the phraseology of the order of the trial Court. In the order the next date of hearing of the suit was fixed as 01.11.2012. On that date the appellants, without failure, appeared and filed an application for depositing the costs and also sufficiently explained that why the same could not be deposited within the stipulated time. All these aspects have not been considered by the trial Court and the application for depositing the costs has been rejected on the sole ground that neither the Court is vested with the powers to review its order nor can sit as appellate or revisional Court on its own order. The learned Additional District Judge rejected the revision filed by the appellants on the main ground that after passing the order the trial Court losses its control over the case and becomes functus officio. The learned High Court also dismissed the writ petition almost on the same ground.

6. Keeping in view the facts and circumstances of this case, we are unable to agree with the opinion of the Courts below. The trial Court itself fixed the date of hearing as 01.11.2012 and on the date fixed the appellants appeared and filed an application for depositing the costs. On that date the trial Court was well seized with the matter and did not become functus officio. It is neither the matter of review of the order nor sitting of the trial Court as appellate or revisional Court on its own order rather it is simple matter of exercise of powers vested under section 148 read with section 155 of Code of Civil Procedure which empowers the Court to enlarge the time fixed or granted by it. Even otherwise, according to the new trend the Courts are in favour of adjudication of the matters on merits rather to throw out the cases on technical grounds.

7. In this state of affairs, while accepting this appeal the impugned judgments/orders are recalled and the application filed by the appellants for depositing the costs is accepted. They shall deposit the costs within a period of two weeks before the trial Court. However, as the other party has also suffered, hence, within same period the appellants shall pay Rs.10,000/- as costs to be paid to the other party. This appeal stands accepted in the above terms. ZC/36/SC(AJ&K) Appeal allowed.