2012 PLP 812 (MLD)

RAUF AHMAD SHEIKH, J.

The petitioner has prayed for restoration of the revision petition titled "Mst. Sikandar Jan v. Abdul Razzaq" dismissed for her non-appearance on 12-10-2011. It is contended that the petition was admitted to regular hearing on 12-7-2004 and was adjourned from time to time but the petitioner had no knowledge about its fixation for 12-10-2011 as she is illiterate lady living in the rural area. It is urged that absence of the petitioner and her learned counsel was not intentional. She contended that she attained knowledge about dismissal of the petition on 5-12-2011 when the respondent asked her to vacate the premises and has moved the application immediately after Moharram-ul-Haram holidays. An application for condonation of delay is also moved with almost the above mentioned contentions.

2. The learned counsel for the petitioner has contended that the revision petition had been admitted to regular hearing so the court instead of dismissing it, should have exercised the revisional jurisdiction to decide it on merits. It is urged that the petitioner is an illiterate and old villager, who could not attain knowledge and the learned counsel also had no intimation about fixation of the petition. It is further contended that the petitioner attained knowledge during holidays of Moharram-ul-Haram and immediately moved the application without loss of further time.

3. The learned counsel for the respondent has vehemently opposed the petitioner. It is contended that a false tale has been concocted to justify the non appearance. It is urged that the petition was moved with inordinate delay of almost 28 days and no lawful reason is available to condone the same. In support of the contentions raised reliance is placed on PLD 1974 Karachi 339, 2002 SCMR 212 and PLD 1991 SC 250.

4. The perusal of the record reveals that the Civil Revision was admitted to regular hearing vide order dated 12-7-2004 and since then the petitioner or her learned counsel had been regularly appearing. She has filed an affidavit to the effect that she attained the knowledge about the dismissal on 5-12-2011 and filed the petition after holidays of Moharram-ul-Haram. No counter affidavit has been submitted. The August Supreme Court of Pakistan and this Court have held from time to time that the cases pertaining to the rights of the parties in respect of immovable property should be decided on merits and not on technicalities. The petition was admitted to regular hearing, which indicates that it was deemed proper that the revisional jurisdiction be exercised to decide if the judgment of the first appellate Court was without any illegality or irregularity. This Court may call for record of any case, which has been decided by any subordinate court and may make such order as it deem fit, if the subordinate court appears to have exercised the jurisdiction not vesting in it or failed to exercise the jurisdiction so vested or acted in exercise of jurisdiction illegally or with material irregularity. Once the revision petition under section 115, C.P.C. is admitted to regular hearing then the Court should appraise the record and decide it on merits instead of dismissing the same for non-appearance, even if the parties or one of them fail to appear on the date fixed for hearing. It is expedient for the ends of justice that the delay be condoned and the civil revision be decided on merits. For the reasons supra, the instant C.M is accepted and civil revision is restored to its original number. K.M.Z./S-27/L Petition accepted.