1992 PLP 967 (MLD)

This Civil Revision application under section 115, Civil P.C. is against a decision of the trial Court passed on 5-5-1991, by which it had restored the suit earlier dismissed by it on 27-10-1985 on account of default in appearance by both the parties. On 15-12-1983, respondent as plaintiff instituted a civil suit to recover Rs.8,00,000 with interest and damages from Mst. Surayya Bano in the Court of Senior Civil Judge, Rawalpindi. Upon being served in the suit, defendant entered appearance through an advocate. Thereupon, suit was adjourned for filing of written statement by her. Later, the defendant died and plaintiff gave list of her legal representatives. In this process, civil suit suffered some adjournments. Eventually on 24-6-1985, the trial Court gave permission for substituting legal representatives of the deceased-defendant and called for an amended pleading from the plaintiff and adjourned the suit for this purpose to 27-7-1985. On the adjourned date, Presiding Officer was on leave and the case was adjourned by the Reader of the Court to 23-9-1985 for submitting amended pleading. It was noted in the order-sheet that only plaintiffs counsel was present but nor- from the defendant's side was in attendance. On the latter date, an order for summoning and appearance of the defendant on 27-10-1985 was made by the Court and the plaintiff was called upon to give registered envelope for issuance of a process. On the date fixed for appearance of the defendant, since both, plaintiff as well as defendant, failed to appear, the suit was dismissed for their default. On 28-4-1986, plaintiff submitted an application for restoration of the suit dismissed in default. In .the restoration application, Mst. Surayya Bano was shown as sole respondent. Upon discovery of the defect, plaintiff applied for amendment for correcting the error and substituting legal representatives of the deceased-respondent by an order of the Court dated 7-7-1986. Amendment was allowed and legal representatives of deceased-respondent were allowed to be substituted for her on record. Consequently, an amended restoration application was put in. Respondent to the restoration opposed revival of the suit. It was submitted that the application 'for restoration was barred by limitation and no sufficient cause was made out for restoration of the dismissed suit. On 10-12-1986, the trial Court settled following issues for determination:- (1) Whether this petition is time-barred? OPR. (2) Whether there exists sufficient cause for restoration of the suit? OPA. (3) Relief. Plaintiff gave evidence of one witness and produced some documents. Petitioners, who were respondents in the lower Court chose not to give c-.7dence in rebuttal. By its order dated 5-5-1991, the trial Court restored the suit subject to payment of Rs.2,000 as costs to the opposite party. It is this order that is being assailed by the petitioners. It is contended on their behalf that restoration application filed against a dead person was an act of absolute nullity and could not have been validated by substitution of legal representatives. In support, reference was made to Municipal Corporation of Karachi v. Baradio Jumoo Mughal, AIR (33) 1946 Sind 20, Mehr Muhammad v. Deputy Settlement Commissioner and another 1979 SCMR

182. It is further contended that the restoration application was barred by limitation and delay in filing could not have been justifiably condoned as was done in the Court below. Upon examination of record and hearing of learned counsel at length, points urged were found to have little substance in them. It was not disputed that Mst. Surayya Bano died during course of trial and before the dismissal of the suit for default in appearance. List of her legal representatives was placed on file by the plaintiff and an order for substitution of her legal representatives was made by the trial Court. Pursuant to an amendment order, amended pleading was directed to be filed. Though the order-sheet did not indicate filing of amended plaint, yet, the original record revealed that amended pleading was taken on file on 23-9-1985. Therefore, showing of the name of a deceased person in restoration application was a mere bona fide mistaken act. It was not denied that impleading of a party -at any stage meant and sufficed for its impleading for all subsequent stages of the suit. Independent of express jurisdiction conferred on Court by section 153 of Civil P.C., the Court also possessed inherent powers for allowing an incorrect description of a party in the pleading to be corrected. Reference with advantage can be had to the rulings in AIR 1961 Patna 480, PLD 1979 Pesh.

31. It is accepted on all hands that rules of procedure are a handmaid of justice and are intended to subserve its ends rather than to obstruct its course. That is a proper place of procedure in all civilized systems of law and must be viewed and looked at from this angle only. Therefore, nothing material turned on the correction allowed to be made in the restoration application by substitution of true parties. As for the point of limitation, it had also no substance in it. Civil suit was not fixed for hearing on the day, it was dismissed for default in appearance of both the parties. It is trite law that a suit cannot be dismissed, either under rule 3 or rule 8 of -Order IX -of Civil P.C., if the date was not for hearing and such dismissal would not be of any legal effect. There is law to .favour :the proposition that no limitation will run against it and the dismissal can be got set aside tinder section 151, Civil P.C. Dismissal on date not fixed for hearing of the suit is reduced to a nullity and in that eventuality, the period prescribed in Article 163 of the Limitation Act, 1908, may not apply. Finally, in regard to the sufficient cause given for condonation of the default, plaintiff gave evidence which was relied upon and believed to be true by the trial Court. Petitioners did not attempt to rebut it. There was no reason, therefore, to disbelieve the correctness of the cause given for explaining the default on the part of plaintiff on the date fixed in the suit. Be that as it may, the suit involved a huge monetary claim, whether it had some basis or lacked it, was a matter to be judged at the trial. But the restoration was in aid of cause of justice and in line with the object of law which favours adjudication on merits. Substantial justice having already been done in the Court below, it may not be apposite to interfere in revision, which is essentially a discretionary jurisdiction of this Court. For the foregoing reasons, revision fails and is dismissed in limine. Records be returned. A.A./S-67/L Revision dismissed.