2014 PLP 1292 (MLD)

SADIQ HUSSAIN BHATTI, J.

The applicant, as per averments in the memo of the revision application, has assailed order dated 9-12-2011 passed by the learned IV Additional District Judge, Karachi Central in Civil Appeal No. 109 of 2006 whereby the application under Order XLI, Rule 19 C.P.C. read with section 151 thereof, was allowed and the appeal was restored to its original position.

2. Brief facts of the case are that the applicant filed Suit No.41 of 2003 for specific performance of a contract, possession and injunction against the respondent which was decreed in his favour. The respondent herein filed appeal before the Additional District Judge, Karachi Central which was allowed and the judgment and decree in favour of the applicant was set aside. The applicant approached this Court by filing II-Appeal No.40 of 2005 which was allowed and the matter was remanded back to the trial Court. In the second round of litigation, the trial Court decreed the suit in favour of the plaintiff and the respondent assailed the same before the IV Additional District Judge, Karachi Central in Civil Appeal No. 109 of 2006 which was dismissed for non-prosecution vide order dated 29-7-2010. The respondent filed an application under Order XLI, Rule 19 read with section 151, C.P.C. for restoration of the appeal which was also dismissed for non-prosecution. The respondent moved another application under the same provision of law for restoration of the application for restoration of the appeal. This application was allowed vide the impugned order whereby both the application under Order XLI, Rule 19, C.P.C. read with section 151 thereof were disposed of and the appeal was restored to its original position. Feeling aggrieved, the applicant has filed the present revision application assailing the impugned order.

3. The only ground urged by the learned counsel for the applicant was that since the application for restoration of the appeal was already dismiss for non-prosecution, therefore, the only application before the learned trial Court was that for restoration the application for restoration of the appeal and not the application for restoration of the appeal itself. Therefore, the learned trial Court was not justified in restoring the appeal itself and thus travelled beyond jurisdiction.

4. On the other hand, counsel for the respondent stated that the learned Court below did not transgress its jurisdiction as it was clarified during the course of arguments that the application for restoration of the appeal is also on record. He also stated that the even the applicant failed to file any counter affidavit to the application for restoration application and filially he was debarred from filing counter affidavit.

5. I have heard the learned counsel for the parties and have gone through the record.

6. The bone of contention between the parties is a shop which was owned by the respondent and was rented out to the applicant. The applicant filed a suit for specific performance in respect of such shop by claiming that the respondent has agreed to sell the same to him. It would be extremely unjust and harsh if any of the parties is non-suited on technicalities and is denied to contest the matter on merits. It is an admitted position that the respondent is a very old person of about 70 years and was sick on the said date. It has also come on record that the mother of the counsel expired on the fateful day when the application was dismissed for non-prosecution. It is also an admitted position that the earlier counsel of the respondent also expired during pendency of the case. Therefore, keeping in view the dictum of law laid down by the Hon'ble Supreme Court that the courts, while deciding the controversy between the parties, lean in favour of adjudication on merits rather than stifling proceedings on technicalities, the appellate Court allowed the two applications and restored the appeal to its original position.

7. In the case of Noorul Amin and another v. Muhammad Hashim and others (1992 SCMR 1744), the Hon'ble Supreme Court held as under:-- "With respect to the learned Judge in Chamber we are unable to accept the above reasoning. It is well settled, that all procedural laws are meant for advancing the cause of justice and they cannot be made a vehicle of oppression to suppress the remedies. It is also well-accepted principle of law that courts always lean in favour of adjudication on merit rather than stifling proceedings on technicalities."

8. Similarly, in the case of Ch. Akber Ali v. Secretary, Ministry of Defence, Rawalpindi and another (1991 SCMR 2114), the Hon'ble Supreme Court held as under:-- "In the exercise to do justice in accordance with law the courts and forums of law cannot sit as mere spectators as if at a higher pedestal, only to watch who out of two quarreling parties wins. See the judgment of this Court in the case of Muhammad Azam v. Muhammad Iqbal and others (PLD 1954 SC 95 at page 132) and Civil Appeal No.789 of 1990 decided on 26-6-1991 (Syed Phul Shah v. Muhammad Hussain PLD 1991 SC 1051). On the other hand deep understanding and keen observance of proceedings is a sine qua non for doing justice in the Constitutional set up of Pakistan. Those Rules of adversary system based merely on technicalities not reaching the depth of the matter, are now a luxury of the past. Neither of the parties can be permitted to trap an improperly defended or an undefended or an unsuspecting adversary by means of technicalities when the demand of justice is clearly seen even through a perfect trap. It will make no difference if the litigant parties are citizens high or law and/or is Government or a State institution or functionary acting as such."

9. In view of the above law laid down by the Hon'ble apex Court it would not be justified to non-suit the respondent on technicalities and more so when it has come on record that on the fateful day mother of his counsel had expired and he himself was not well.

10. Although, the Court below had acted with slight irregularity by directly allowing the application for restoration of appeal and restoring the appeal rather than first allowing the application for restoring the application for restoration of the appeal and then allowing the application for restoration but, in my view, such irregularity will cause no harm and will not affect the final outcome. Therefore, while hoping that the court below would be more careful in future, I dismiss this revision application. The Court below is directed to expeditiously dispose of the appeal pending before it. MH/A-150/Sindh Revision dismissed.