P L D 2008 Karachi 103 (PLP)

C.M.A.No.5047 of 2007 NADEEM AZHAR SIDDIQI, J.

By this application the plaintiff has prayed for recalling the order dated 31-5-2005 by which the suit was dismissed for non-prosecution. The learned counsel for the plaintiff submits that on the day when the suit was dismissed the same was fixed for arguments and instead of dismissing the same for non-prosecution the. Court should decide the same on merits as the evidence of the parties were available on record. Regarding limitation the learned counsel for the plaintiff submits that since the order for dismissing the suit is patently illegal the same can be recalled at any point of time and no limitation is provided for recalling a patently illegal order. The learned counsel for the defendant has opposed the application and submits that the order was rightly passed as the learned counsel for the plaintiff was not present to proceed with the matter. The learned counsel for the plaintiff has placed on record a photo copy of the order passed in the case of Hashwani Hotels Limited v. Afghan Carpet and another (Suit No.11223 of 1996) in which a learned Single Bench of this Court relying upon the observations made by the Hon'ble Supreme Court in the reported case of Muhammad Haleem and others v. H.H. Muhammad Naim and others PLD 1969 SC 270 has restored the suit to its original position. Admittedly, the suit was dismissed for non-prosecution when the same was fixed for arguments and both the parties were called absent. The material in the shape of evidence is available on record and the Court can proceed to decide the case on merits under Order XVII, Rule 3, C.P.C. In the reported case of Muhammad Haleem and others v. H.H. Muhammad Naim and others the Hon'ble Supreme Court has held as under:-- "The consensus of judicial opinion appears to be in favour of the view that if it is possible for a Court to base a decision on merits upon the materials already brought on the record, it should proceed under rule 3 of Order XVII and not under rule

2. This appears to us also to be sound on principle. Every party who has instituted a cause or matter in a Court has a right to have his case decided on merits. A dismissal for non-prosecution should, therefore, be an exception and not a rule. If it is at all possible for a court to decide the matter as indicated in rule 3, then it should adopt that course and not dismiss the proceeding for non-prosecution and leave the parties to start a second ground of litigation". The learned Single Bench of this Court in the case of Hashwani Hotels Limited relying upon the above reported case of Hon'ble Supreme Court has held as under

"??the date fixed for filing replication is not a date of hearing of a suit and, therefore, the suit cannot be dismissed in default as it was not, intended that there should be a hearing of the suit in the ordinary sense of word i.e. on which either evidence is to be taken or arguments heard." From the order it is apparent that the same is not a proper order and no limitation is prescribed for recalling an order which is not warranted under law. It is an accepted principle of law that an act of Court should not prejudice anyone. Furthermore under section 151, C.P.C. the Court is empowered to make such order as may be necessary for the ends of justice or to prevent abuse of the process of Court. In view of the above the application is allowed as prayed. The suit is restored to its original position. Office is directed to fix this case for argument according to roster. M.H./F-25/K?????????????????????????????????????????????????????????????????????????????????????? Application allowed.