1998 PLP 1128 (CLC)

IKRAM AHMAD ANSARI, J.‑‑‑After hearing the learned Advocate for the petitioner in the matter vide short order, dated 10‑2‑1998 we had dismissed this petition in limine and following are the reasons for such Order of dismissal:‑‑‑ The brief facts as detailed in the memo. of petition are that respondents Nos.3 to 5 had filed a suit against the petitioner bearing No.58 of 1992 (which was later numbered as Suit No.46 of 1993) for declaration, possession and mesne profit valued at Rs.25,480 (Rupees twenty five thousand, four hundred and eighty only) in the Court of learned Senior Civil Judge, Dadu. The said suit was contested by the petitioner by filing a written statement. After settlement of issues in the suit proceedings, the parties had adduced their evidence and the case had reached the stage of final arguments. On 12‑5‑1996 advocates of both parties had sought adjournment, which was granted, and the matter was fixed for arguments on 23‑5‑1996; but in the meantime i.e., prior to 23‑5‑1996 the Court of learned Senior Civil Judge, Dadu was shifted to "Sehwan" and notification to such effect was affixed/displayed on the notice board of the District Court Bar Association, Dadu. It is also the case of the petitioner that on 23‑5‑1996, neither the parties nor their Advocate appeared before the Trial Court, therefore, the case was adjourned to 3‑6‑1996 for hearing the arguments of the Advocates of the parties; but on such adjourned date none appeared before the Trial Court, therefore, a Court motion notice was issued to the Advocates of the parties for the next date of hearing i.e., 17‑6‑1996. In spite ‑of such notice also none appeared before the Trial Court and again the suit was adjourned to 25‑6‑1996 when again neither the parties nor their Advocates appeared before the learned Trial Court, therefore, the said Suit No.46 of 1996 (old Suit No.58 of 1992) was dismissed for non‑prosecution. It is submitted on behalf of the petitioner that the learned District and Sessions Judge, Dadu, the respondent No.l, while inspecting the Court of learned respondent No.2 (Trial Court) took away the case file and in the purported exercise of Suo Motu Revisional Power, without issuing any notice and without hearing the parties the said F.C. Suit No.46 of 1993, restored the said suit vide impugned order, dated 26‑12‑1996, remanding the case back to the learned Trial Court with direction to decide the said suit afresh after considering the evidence of parties and hearing the counsel for the parties on merits. It has been contended by the petitioner that the impugned order, dated 26‑12‑1996, passed by the learned respondent No. l is without lawful authority and of no legal effect and as such deserves to be quashed and set aside by this Court in exercise of its Constitutional jurisdiction on the grounds stated in the memo of petition. The impugned order reflects that the learned respondent No.l while inspecting the Court of learned Senior Civil Judge, Sehwan observed that vide order, dated 25‑6‑1996 F.C. Suit No.46 of 1993 was dismissed for non- prosecution without considering the evidence on record and the merits of the case and as such he exercised Suo Motu Revisional Jurisdiction under section 115(2), C.P.C. We are of the view that there is ample justification to sustain the impugned order of learned respondent No. 1, who in order to rectify a patent error in the order, dated 25‑6‑1996 passed by the learned Trial Court was justified to set aside the same and remand the case for decision on merit. It is an admitted position that the parties had already adduced evidence in support of their respective case and as such it was incumbent upon the learned Trial Court to decide the matter on merit, irrespective of the fact whether Advocate of the parties had advanced their arguments or not. In the said circumstances, the learned respondent No. l has correctly exercised the vested Suo Motu Revisional Jurisdiction under section 115(2), C.P.C. The main ground of attack of the learned Advocate for the petitioner on the impugned order of learned respondent No. l is that the mandatory requirement of section 115, C.P.C. are not spelt out in the said order, therefore, respondent No. l had no jurisdiction to invoke the Suo Motu Revisional Powers as the learned Trial Court was vested with power to dismiss the suit for non- prosecution. He further submitted that there was no jurisdictional defect in the order passed by the learned respondent No.2 and as such it did not warrant any interference by the respondent No. l . We have taken pains to consider the submissions of the learned Advocate for the petitioner, inasmuch as whether the learned respondent No. l has exercised the jurisdiction which was not vested in him by law. In this regard we would like to reproduce hereunder subsection (2) of section 115, C.P.C. under which provision of law the learned respondent No. l has passed the impugned order in accordance with law. Subsection (2) of section 115, C.P.C. reads: "The District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court sub ordinate to such District Court in which no appeal lies and the amount or value of the subject‑matter whereof does not exceed the limits of the appellate jurisdiction of the District Court." It would be appropriate to mention here that in the case of Asghar Abbas‑v.‑Muhammad Ramzan and four others reported as (1993 CLC 1313) it has been held: "The scope of the revisional powers being vast, corresponding to a remedy of certiorari. Revisional jurisdiction, being in the nature of supervisory jurisdiction may even be invoked by the Court suo motu." Similarly in the case of Gul Muhammad Shah v. Shahak Dad reported as 1993 CLC 1547 it has been held: "Court while sitting in a revisional jurisdiction under section 115 is always under enormous duty which can also be exercised suo motu, to examine whether the orders/proceedings suffer from material illegalities or irregularities warranting exercise of jurisdiction for correcting errors responsible for causing miscarriage of justice and irrespective of the fact that the petition has no chances to succeed on account of any technical or legal point. Because if the omissions committed by the Courts below are not corrected in the revisional jurisdiction solely for the reason that it has no substance, the object of conferring revisional jurisdiction on this Court as well as District Judge will be frustrated, therefore, it is held that in the fit cases where injustice appears to have been caused even without considering any technical point the jurisdiction must be exercised in larger interest of justice. " It is an admitted position that the learned respondent No.2, on the failure of Advocates of the parties to argue the case, had dismissed F.C. Suit No.46 of 1993 for non‑prosecution ignoring the fact that the evidence of the parties to the suit had already seen concluded. It will be pertinent to mention here that the provisions of Order 18, Rule 2, C.P.C. do not necessarily require the advancement of arguments. Requirement of the said provisions of law is that in case parties wish to advance arguments in support of their cases then the Court has to afford them an opportunity to do so, but hearing of arguments before disposing of the case is not essential. The above proposition of law finds support in a Division Bench judgment passed in the case of Abdullah and another v. Mian Tafuzal Hussain and another reported as PLD 1961 Baghdad‑ul‑Jadid

58. Further the provisions of Order 20, Rules 4 and 5, C.P.C. deal with the manner in which the judgments and decrees ought to be announced by the Courts. The superior Courts have interpreted the said provisions in various judgments including the case of Arif Yazdani and others v. Shaikh Abdus Salam and others reported as PLD 1957 (W.P.) Lahore 983 wherein it has been held that "the decision of the Court must be passed on legal grounds established by legal testimony." In another case of F. Kanematsu & Co. Ltd. v. Nazir Hussain Puri reported as PLD 1957 (W.P.) Karachi 832 it has held that:- "It is the duty of a Court when ex parte proceedings are taken to consider the interest of the absent defendant and, therefore, there should have been some indication on the record to satisfy this Court that the matter was properly considered and the learned Judge who dealt with the case applied his mind to the facts of the case." In the case of Amanat Ali and 3 others v. Haji Muhammad Ali reported as 1984 CLC 362 it has been held that: "The conclusion reached by him is superficial and was arrived at without adverting to the material on the file. I am not inclined to rest the decision of this Regular Second Appeal on such a finding of fact and give a verdict on Issue No. l in favour of 'the respondent." We find that the learned respondent No. l has passed the impugned order, dated 26‑12‑1996 under the authority vested in him by law and is binding and operative on the parties to the suit as such we maintain the said order and had dismissed the petition in limine. At the time when the above petition was presented in Court the office had raised an objection that "the laches be explained;" but the learned Advocate for the petitioner appended his note "refer to Court". Today the learned Advocate submitted that the learned respondent No. l passed the impugned order on 26‑12‑1996 exercising suo motu revisional jurisdiction as he was on inspection of respondent No.2 Court. Petitioner came to know of the impugned order around 7‑10‑1997 and obtained the certified copy thereof on the same day and presented the above petition in this Court on 22‑10‑1997. The learned Advocate for the petitioner submitted that as such the petition does not suffer from laches and the office objection at the initial stage is unwarranted. In support of his submissions he placed reliance on the case of Pakistan Post Office v. Settlement Commissioner and others reported as 1987 SCMR 1119 wherein the Hon'ble Supreme Court has held: "There is considerable case‑law on the question of laches ranging from dismissal of a writ petition on ground of delay of few months, to condonation of laches for over a decade. No hard and fast rules have been laid down in this behalf. There is no law of limitation which may directly apply to the institution of writ petitions and their dismissal on ground of limitation. Such position in this field of law would undoubtedly place any lawyer in a state of uncertainty what to talk of the litigant public. It would be rare that in ordinary practice such like delays would be met in the memorandum of writ petition as is the requirement regarding the statute of Limitation; whereunder when the matter is beyond limitation, an application under section 5 thereof is made applicable. An occasion to meet the point of laches in writ petition arise when a specific plea is taken by the opposite‑party in a written statement. When no such plea is taken or when taken, adequate time and opportunity is not afforded to the writ petition to meet it, the High Court would not be justified in dismissing the writ petition on the assumption that no explanation is offered by the counsel arguing the case." The above submissions of the learned Advocate for the petitioner are of substance, therefore, we overrule the office objection. Foregoing are the reasons for our short order, dated 10‑2‑1998. The petition is dismissed so also the listed Miscellaneous Applications Nos. 1080 of 1997 and 1081 of 1997 are dismissed as infructuous. A.A./S‑143/K Petition dismissed.