2006 SCMR 1766 (PLP)
RAWAT and others — Petitioners Versus SHAFI MUHAMMAD and others — Respondents
| Citation | 2006 SCMR 1766 (PLP) |
| Forum / Court | Supreme Court of Pakistan |
| Bench Members | M. Javed Buttar and Saiyed Saeed Ashhad, JJ |
| Parties | RAWAT and others — Petitioners Versus SHAFI MUHAMMAD and others — Respondents |
Q1: What are the key laws and sections cited in 2006 SCMR 1766 (PLP)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2006 SCMR 1766 (PLP)?
The case was heard and decided by the Supreme Court of Pakistan bench comprising: M. Javed Buttar and Saiyed Saeed Ashhad, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2006 SCMR 1766 (PLP) (RAWAT and others — Petitioners Versus SHAFI MUHAMMAD and others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- --S. 24-A(2) & O.III, R.5---Constitution of Pakistan (1973), Art.185(3)---Transfer of suit---Appearance of parties on transfer of suit---Service of process on pleader---Suits were transferred from one Court to another---Transferee Court which received papers, adjourned the matters---Notices were issued to parties' Advocates who refused to accept service---Court after perusing report of bailiff found service good and fixed suits for evidence---After recording evidence of respondents, suits were fixed for evidence of petitioners but they did not appear and after hearing counsel for respondents, suits were decreed---Appeal filed against judgment of Trial Court was dismissed by Appellate Court below being barred by time and petitioner's revisions against judgment of Appellate Court, were also dismissed by High Court vide impugned order---Validity---Law required petitioners to appear before the Court on adjourned date of hearing and had they appeared on said date, they would have been informed that their suit stood transferred to transferee Court---Even otherwise transferee Court did not straightaway pass ex parte proceedings against petitioners, but issued notices to the counsel of parties and took action only when counsel for parties refused service---Counsel for petitioners could not show any illegality in the conclusion drawn by High Court, which was based on correct interpretation of S.24-A(2), and O.III, R.5, C.P.C.---Leave to appeal, was declined.
- Abdul Rahim Kazi, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Petitioners.
- Akhter Mehmood, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondents.
- 2. The relevant facts are, that on 2-9-1979 the respondent instituted two separate pre-emption suits in the Court of Senior Civil Judge, Khairpur. The history of the suits showed that they were transferred from one Court to another. Lastly they were pending in the Court of Civil Judge, Pir Jo Goth for recording the evidence of plaintiffs. The Court became vacant. On 29-9-1997, when both the parties were present, the suits were adjourned to 13-11-1997, in the meanwhile the learned District Judge, transferred both the suits to the Court of Civil Judge, Kotdiji which Court received the said papers on 11-7-1997 and the matters were adjourned to 13-11-1997 as the same were already fixed for that date by the Civil Judge, Pir Jo Goth but nobody appeared before the Civil Judge, Kotdiji on 13-11-1997. The notices were issued to the parties Advocates of both the suits. On 6-12-1997 notices were returned, served upon Advocate of both the parties with a report that both the learned counsel had refused to accept service. The Court, after perusing the report of bailiff held the service good and the suits were fixed for evidence. The evidence of the plaintiff in both the suit was recorded. On 23-12-1997 the suits were fixed for evidence of defendants but they did not appear. The suits were adjourned to 24-12-1997 and on the said date, after hearing learned counsel for the plaintiffs, both the pre-emption suits were decreed. On 20-4-1998, the petitioners preferred appeals before the District Court along with applications under section 5 of the Limitation Act, 1908 for condonation of delay, on the ground that the suits were decreed on 24-12-1997 without their knowledge and they came to know about the ex parte decrees on 6-4-1998, they applied for copies which were supplied to them on 17-4-1998 and they, instituted the appeals on 24-4-1998. The appellate Courts, after hearing learned counsel for the parties, dismissed both the appeals being barred by time. The petitioners' revisions petitions, as mentioned above, have been dismissed through the impugned judgment, the concluding paragraphs of the same, read as under:--
- "In the present case on 29-9-1997 the suits were pending before the Civil Judge, Pir Jo Goth when the parties were present. The suit was adjourned to 13-11-1997 in their presence and the said date was in their knowledge. It appears that the parties did not appear before the said Court on 13-11-1997. Had they been appeared before the said Court, they would have been informed about the transfer of the suits as required under section 24-A(2), C.P.C. Non appearance of the parties and their Advocates before the Court of Civil Judge, Pir Jo Goth clearly show their gross negligence on their part which cannot be condoned without assigning cogent, plausible and sufficient cause. However, the transferee Court ordered for the issuance of the Court motion notices upon the parties' Advocates which were served as per bailiff's report, upon the Advocates for the applicants but nobody cared to appear before the transferee Court. As such the applicants had knowledge about the transfer of the suits; therefore, they cannot claim that they had no knowledge about the transfer of the suits. They got the said knowledge in pursuance of service of notice upon their Advocates in terms of Order III, rule 5, C.P.C. The notices were deemed to have been served upon the applicants for all effectual purposes.
Judgment & Decree
M. JAVED BUTTAR, J.
The listed petitions are directed against the common judgment dated 23-2-2004 passed by a learned Single Judge of High Court of Sindh Bench at Sukkar, whereby Civil Revision Applications Nos.38 and 39 of 2000 instituted by the petitioners/defendants/vendees stand dismissed.
2. The relevant facts are, that on 2-9-1979 the respondent instituted two separate pre-emption suits in the Court of Senior Civil Judge, Khairpur. The history of the suits showed that they were transferred from one Court to another. Lastly they were pending in the Court of Civil Judge, Pir Jo Goth for recording the evidence of plaintiffs. The Court became vacant. On 29-9-1997, when both the parties were present, the suits were adjourned to 13-11-1997, in the meanwhile the learned District Judge, transferred both the suits to the Court of Civil Judge, Kotdiji which Court received the said papers on 11-7-1997 and the matters were adjourned to 13-11-1997 as the same were already fixed for that date by the Civil Judge, Pir Jo Goth but nobody appeared before the Civil Judge, Kotdiji on 13-11-1997. The notices were issued to the parties Advocates of both the suits. On 6-12-1997 notices were returned, served upon Advocate of both the parties with a report that both the learned counsel had refused to accept service. The Court, after perusing the report of bailiff held the service good and the suits were fixed for evidence. The evidence of the plaintiff in both the suit was recorded. On 23-12-1997 the suits were fixed for evidence of defendants but they did not appear. The suits were adjourned to 24-12-1997 and on the said date, after hearing learned counsel for the plaintiffs, both the pre-emption suits were decreed. On 20-4-1998, the petitioners preferred appeals before the District Court along with applications under section 5 of the Limitation Act, 1908 for condonation of delay, on the ground that the suits were decreed on 24-12-1997 without their knowledge and they came to know about the ex parte decrees on 6-4-1998, they applied for copies which were supplied to them on 17-4-1998 and they, instituted the appeals on 24-4-1998. The appellate Courts, after hearing learned counsel for the parties, dismissed both the appeals being barred by time. The petitioners' revisions petitions, as mentioned above, have been dismissed through the impugned judgment, the concluding paragraphs of the same, read as under:-- "In the present case on 29-9-1997 the suits were pending before the Civil Judge, Pir Jo Goth when the parties were present. The suit was adjourned to 13-11-1997 in their presence and the said date was in their knowledge. It appears that the parties did not appear before the said Court on 13-11-1997. Had they been appeared before the said Court, they would have been informed about the transfer of the suits as required under section 24-A(2), C.P.C. Non appearance of the parties and their Advocates before the Court of Civil Judge, Pir Jo Goth clearly show their gross negligence on their part which cannot be condoned without assigning cogent, plausible and sufficient cause. However, the transferee Court ordered for the issuance of the Court motion notices upon the parties' Advocates which were served as per bailiff's report, upon the Advocates for the applicants but nobody cared to appear before the transferee Court. As such the applicants had knowledge about the transfer of the suits; therefore, they cannot claim that they had no knowledge about the transfer of the suits. They got the said knowledge in pursuance of service of notice upon their Advocates in terms of Order III, rule 5, C.P.C. The notices were deemed to have been served upon the applicants for all effectual purposes. Admittedly, the appeals were time-barred. The appellate Court had considered all the aspects of the case minutely. There is no illegality or irregularity in the impugned judgment and decree; therefore, the same do not require any interference. The revision applications have no merits; therefore, the same are dismissed along with the listed applications."
3. We have heard learned counsel for the parties and have also seen the available record.
4. It is submitted by the learned counsel for the petitioners that the petitioners were not informed of the date of hearing. The learned counsel for the respondents, on the other hand, while opposing the petitions, has submitted that the impugned common judgment has correctly taken care of this objection and has also placed reliance on S. Irshad Hussain and another v. Azizullah Khan and another 1987 SCMR 150.
5. We have given our anxious consideration to the facts and circumstances of the present case and the law governing such a situation. We find no force in the arguments of the learned counsel for the petitioners and find no merit in these petitions. Law required the petitioners to appear before the Court of Civil Judge, Pir Jo Goth on the adjourned date of hearing i.e. 13-11-1997 and had they appeared on the said date, as required by law, they would have been informed that their suits stand transferred to Civil Court Kotdiji. Even otherwise, by way of abundant caution, Civil Judge, Kotdiji did not straightaway pass ex parte proceedings against the petitioners and issued notices to the counsel of the parties and took action only when the learned counsel for the parties, on 6-12-1997, refused the service. Learned counsel for the petitioners has not been able to show us any illegality in the conclusion drawn by the learned Single Judge of the High Court, which has been reproduced above, which in our view, is based on the correct interpretation of law i.e. section 24(A)(2), C.P.C. and Order III, rule 5, C.P.C. In S. Irshad Hussains' case (supra), this Court while considering somewhat similar situation, held as follows:-- "The language of section 24-A, subsection(2) in fact reflects this purpose and seeks to achieve it by making it obligatory on the parties to get themselves informed of the future date of hearing and the Court where the case has been transferred. The only duty placed on the Court is to inform them so when they approach it for that purpose. There was no indication on the record that any defaulting defendant had approached any of the Courts for that purpose." In view of the above mentioned, these petitions are dismissed and leave declined. H. B.T./R-16/SC Petition dismissed.