2013 PLP 765 (YLR)

SYED MUHAMMAD FAROOQ SHAH, J.

The applicant/plaintiff Shamsuddin on 26-10-1995 instituted a suit for specific performance of contract and permanent injunction (F.C. Suit No.169 of 1995 old/141 of 1996 New), in the Court of Senior Civil Judge, Sanghar, averred therein that late father of plaintiff purchased suit plot by agreement of sale from the defendant No.1 and after the death of his father, plaintiff repeatedly requested the defendant No.1 to transfer it, who lastly refused to execute the registered sale-deed, hence the plaintiff has sought the following relief:- "(a) That, this honourable Court may be pleased to direct the defendant No.1 to perform his remaining part of contract by executing the registered sale-deed in respect of suit plot in favour of plaintiff on his failure, Nazir of this honourable Court may be ordered to execute registered sale-deed in respect of suit plot in favour of plaintiff. (b) That, defendants be restrained from interfering with the peaceful possession of plaintiff over the suit plot in whatsoever manner by themselves or through their agents, associates, subordinates, friends and successors in interest by issuing permanent injunction against them. (c) That, the costs of the suit be borne by the defendants. (d) That, any other relief which this honourable Court deems fit and proper may be awarded to the plaintiff."

2. From the perusal of record, it transpires that on admission of suit, summons were issued to the defendant, returned duly served, defendants No.2 and 4 filed written statement and by order dated 3-10-1997, defendant No.1 was declared ex parte. Issues were settled on 3-3-1998. It appears that on 24-8-1998, suit was dismissed in default for want of prosecution. Applicant filed an application under Order IX Rule 9 C.P.C. for restoration of the suit which was allowed by order dated 11-12-1998. The plaintiff did not adduce evidence hence by subsequent order dated 15-3-2001, once again suit was dismissed for want of prosecution and default, Plaintiff, on 19-3-2001 moved an application under Order IX Rule 9 C.P.C. which was culminated in dismissal order dated 6-1-2004. The appeal preferred Under Order XLIII Rule 1, C.P.C. (M.C.A No.6 of 2004) had also been dismissed by impugned order dated 27-5-2009 by learned District Judge, Sanghar. Hence the captioned revision has been preferred under section 115, C.P.C, mainly on the ground that learned trial Court did not verify the record as there were 25 adjournment applications on behalf of the respondents Nos.2 and 3 during the period of 3-3-1998 to 15-3-2001. Moreso, contentions of applicant in his affidavit, filed in support of application under Order IX Rule 9, C.P.C. are not controverted by any counter affidavit of the party. It is stated that applicant had reached in Court at 11-30 a.m. on 15-3-2001, after attending the funeral of his near relative in desert and such fact has not been denied by Mr. Mevaram, therefore, the learned trial Court committed an illegality in dismissing the suit at early hours. It is further stated that applicant was late due to circumstances beyond his control and there was communication gap in between the applicant and his Advocate. In his counter-affidavit, filed by respondent No.2, the grounds raised by the applicant have been denied in argumentated shape. However, remaining respondents have not filed any counter affidavit or objection on the captioned Revision Application.

3. I have considered the arguments advanced from both the sides, perused the record and the citations relied upon by learned counsel.

4. Mr. Jhamat Jethanand, representing the applicant has filed photocopy of 10 adjournment applications, wherein adjournment was sought by the respondents/defendants after framing of issues from 24-12-1998 to 12-1-2001 and categorically stated that there was sufficient reason and plausible cause of absence of the applicant/plaintiff on the date of dismissal of suit in non-prosecution, which was beyond his control, more particularly the applicant/plaintiff rushed to the court from the desert and reached at 11-30 a.m. in the Court and came to know about dismissal of his suit. Learned counsel argued that general policy of law leans in favour of adjudication on merits and dismissal in default should serve as an exception to this general rule of law as held in the cases reported as Muhammad Naveed Hussain v. Small Business Finance Corporation/ SME Bank Ltd. and 2 others (2006 CLD 1486), Shahzaman and another v. Muhammad Aslam and 3 others (PLD 1985 Peshawar 35), Muhammad Khan through Legal Heirs and others v. Shabarati (PLD 1995 Karachi 267), Sharafat Ali v. Muhammad Boota and another (1985 CLC 1063) and Abdul Aleem v. General Public and 5 others (1999 CLC 323).

5. On the other hand, Mr. Muhammad Hashim Memon, representing the respondents Nos.2 and 3 emphatically rebutted the grounds agitated in the instant revision application and stated that applicant/plaintiff has miserably failed to adduce the evidence even after availing last chances and the ground of absence taken by the applicant/plaintiff was expressly controverted by Mr. Mevaram, Advocate in Para 5 of his counter-affidavit (Page 111 of the file). It is next contended that on the date of dismissal of suit, learned counsel for the plaintiff was present in Court but he did not move application for adjournment, therefore, reason given by the applicant is palpably false. It is contended that orders of both the lower Courts are legal, valid and perfect in the circumstances of the case and no exception can be legally taken. It is further urged by learned counsel that respondent No.2 was not party in the suit or appeal, who has been impleaded in the Revision Application with mala fide intention, moreso, no jurisdictional error is pointed out in the impugned orders and the same deserve no interference in exercise of revisional jurisdiction, which is limited, particularly in case of concurrent orders. To support his contention, the learned counsel placed reliance on the case of Gul Rahman v. Gul Nawaz Khan (2009 SCMR 589), wherein it was held that "scope of revision is limited to some illegality, material irregularity or jurisdictional defect in the impugned judgment." Reliance has also been placed on the cases reported as Bashir Ahmed and others v. Sett: & Reh: Commr: and others (1982 SCMR 188), Naseem Ahmed v. Haji Usman (1994 CLC 690), Fayyaz Hussain v. Khatim Hussain and others (2010 MLD 163), Malik Gul Hussain v. M. Ayoob and others (1986 SCMR 1349) and M. Anwar Birlas v. M. Ismail Bhatti (1989 SCMR 1091).

6. It is pertinent to mention here that provisions of procedure are meant for the sake of administration of justice and such provisions should be subservient to the cause of justice. Such provisions do not control the powers of Court for passing an order necessary for doing full justice in a case and this view finds support from a case reported as Giyani Khan and others v. Sher Ali and 3 others (2005 CLC 686), when such like proposition arose before the honourable Supreme Court of Pakistan in a case titled as Province of Punjab and others v. Col: Abid Majeed (1997 SCMR 1692), where it was held that, "Code of Civil Procedure was enacted for regulating the procedure before Civil Courts. The provisions of C.P.C. are mainly the rules of procedure and all the procedural law should be subservient to cause of justice, they neither limit nor control the power of Court to pass an order/judgment or decree which is necessary in the cause of justice."

7. In the case of Baber Hussain Shah and others v. Mujeeb Ahmed Khan (2012 SCMR 1235), their lordships held that "concept of fair trial and due process has always been the golden principle of administration of justice but after incorporating of Article 10-A of the Constitution, it had become more important that due process should be adopted for conducting a fair trial and an order passed in violation of due process might be considered to be void." In the case of Mst. Jahan Ara v. Muhammad Zubair (2012 CLC 1630), it was held that "Cherished goal of law is that matters to be decided on merits so that litigants are not deprived of their valuable rights in wake of their technically knock out." In the case of Muhammad Farooq v. Engineer and Chief G.H.Q (2012 PLC 1335), the Court laid down the dicta "technicalities should not hamper the cause of justice and may not be used to create hurdles in the way of administration of substantial justice." In the case of Varan Tours v. Province of Punjab (2011 YLR 5 Lahore), the Court held that "technicalities should be avoided in administration of justice as basic duty of Court being to administer justice on basis of evidence led by the parties according to the facts and circumstances of each and every case."

8. Suffice to say that the trial Court and the appellate Court below too, had fallen into an error in maintaining the same order. Once issues were framed and the Court entered upon recording the evidence, the matter had to be taken to its logical end and resort should not be made to its disposal in non-prosecution or default particularly summary provisions of law as contained in the Civil Procedure Code for disposal of suit on merits could be invoked. There may be some short fall and delay on the part of plaintiff/applicant to adduce the evidence but keeping in mind the golden principle of administration of justice laid down by our Superior Courts read with Article 10-A of the Constitution of Pakistan mentioned as supra, it is supreme duty of the Court to provide fair opportunity to the parties approached the Court for redressal of their grievances and the Courts for the sake of larger administration of justice to safeguard the valuable rights of the parties on merits. In this view of the matter, the Revision Application is allowed but with cost of Rs.10000 (Ten thousand) in favour of private defendant of F.C.Suit No.169 of 1995 (old), 141 of 1996 (New) and the applicant/plaintiff is required to produce his complete evidence before the trial Court and on his failure to adduce the evidence, the learned trial Court is set at liberty to impose the cost of Rs.2000 on each adjournment sought by the plaintiff and decide the matter on merits, after affording fair opportunity to both the parties. The Revision Application is allowed in terms and the manner indicated above. MH/S-108/K Revision allowed.