2005 PLP 1483 (MLD)

The plaintiff is seeking restoration of the suit which was dismissed in default on 20-2-2004 when it was fixed for orders on Official Assignee's reference dated 27-10-2003 and arguments on Misc. application. The facts relevant appear to be that a suit for specific performance of the contract, possession, injunction and damages was filed by plaintiff-bank against the two defendants. However the defendants despite having been served failed to file the written statement as such ex parte order was passed and thereafter the suit was decreed ex parte vide judgment and decree dated 14-5-2003. It appears that an application for setting aside ex parte judgment and decree was filed on 17-6-2003 and a learned Single Judge of this Court by an order dated 22-12-2003 recalled the ex parte judgment and decree and ordered that suit should proceed in accordance with law. In all fairness thereafter the defendants should have filed their written statement and contested the suit but the record shows that no such written statement has been filed and when the suit was fixed on 20-2-2004 for orders on Official Assignee's reference dated 27-10-2003 and arguments on some interlocutory application, it was dismissed apparently for non-prosecution though there was no occasion for dismissal of the suit and at the most the application fixed for arguments could be dismissed. This application under Order IX, rule 9, C.P.C. has been filed on 19-4-2004 which appears to be beyond the period of 30 days which is the time prescribed under the law for filing such applications. However, this application is accompanied by the application under section 5 of the Limitation Act duly supported by affidavit stating therein that their counsel Mr. Athar Rizvi who was appearing in the suit for the plaintiff-Bank without infortning the Bank shifted to USA and as such the plaintiffs were not aware of the proceedings and on coming to know about the fate of the suit, filed this application. The factum of knowledge regarding the dismissal of suit has been disputed by the learned counsel for the defendants who has argued that the plaintiffs were throughout negligent in pursuing their matter and even the date of dismissal was within their knowledge, hence there is no ground for condonation of delay because delay of each day is to be explained and by lapse of time valuable rights accrue in favour of the other side. I have given due consideration to the arguments of the learned counsel for the parties and find that the order of dismissal of the suit on 20-2-2004 was not warranted in law. There appears to be force in the contention of learned counsel for the applicant/plaintiff that the suit was not fixed for final hearing or final disposal and at the most the listed application could be dismissed and not the suit as a whole, hence the order of dismissal shall be deemed to be a void order for which no limitation is prescribed under the law. In support of his contention Mr. Khaliq Ahmed has relied upon the case of Qazi Muhammad Tariq v. Hasan Jehan and others (1993 SCMR 1949). Under the circumstances, while recalling the order dated 20-2-2004, I direct that suit stands restored to its position as before its dismissal on 20-2-2004. However, in the interest of justice and in order to provide a further reasonable opportunity to the other side to contest the suit on merits, I will grant 30 days more time to file their written statements if the defendants so desire though they have failed to file the same within the specified time. H.B.T./N-67/K Order accordingly.