1995 PLP 539 (SCMR)

ZIA MAHMOOD MIRZA, J.‑‑‑This is a petition for leave to appeal against the judgment of a learned Single Judge of Balochistan High Court dated 26‑3‑1992 dismissing the petitioners' appeal against the order of Additional District Judge‑III, Quetta dated 25‑11‑1990 whereby an application filed by the petitioners under Order 9, Rule 9, C.P.C. was rejected and dismissal of the suit in default vide his order dated 23‑11‑1988 was maintained.

2. Facts giving rise to this petition, briefly stated, are that the petitioners brought a suit for declaration, partition and possession of the suit properties against Haji Subedar Khan and 14 other defendants. The suit was filed in the Court of District Judge, Quetta in the year 1961/62. It was contested by defendants No. 1,14 and 5, 6, 9, 11,12, 13 by filing written statements. Rest of the defendants were proceeded ex parte. It is an admitted position that defendant No. 14 Qurban Ali Khan died in 1966 while Haji Subedar Khan defendant No. 1 died on 19‑12‑1975. According to the petitioners, application was filed for impleading the legal heirs of Ourban Ali Khan defendant. It is, however, not clear whether any order was passed on that application but it is stated that the counsel for the deceased defendant Qurban Ali Khan had been appearing till the end of the proceedings. Application was also made on 13‑2‑1976 for bringing on record the legal representatives of defendant No. 1 and even notices were served on them but they did not turn up. Ex parte proceedings were, therefore, ordered against them on 23‑6‑1979.

3. It appears that defendants No. 5 to 10 also died during the pendency of the proceedings. This fact was brought to the notice of the trial Judge by the counsel appearing for the deceased defendants on 24‑4‑1986. Counsel for the petitioner took time for taking steps to implead the legal heirs of the said deceased defendants. He was allowed 20 days' time, and the case was adjourned to 17‑5‑1986. It is submitted that the petitioners could not implead the legal heirs of defendants No. 5 to 10 because they were unable to find out their names and particulars. Be that as it may, the case remained pending without any progress and ultimately on 23‑11‑1988, it was dismissed for non prosecution because neither the petitioners /plaintiffs nor their counsel appeared in the Court despite repeated calls. (on that very day, however, the petitioner through their counsel Mr. Asadullah Khan Advocate moved an application under Order 9, Rule 9, C.P.C. for recalling the order of dismissal of the suit. The explanation for non‑appearance furnished in the application was as follows:‑‑ "The counsel for applicant was busy in a case Haji Muhammad v. Zahoor Ahmad and three others ' in the Court of Senior Civil Judge, Quetta. When the case w1as called the counsel for the applicant‑plaintiff rushed to this Hon'ble Court but the same was dismissed in default before arrival of the counsel for the applicant‑plaintiff." Notice of this application was ordered to issue to Subedar Khan respondent alone as only his name was mentioned in the title of the application. Copy of the order‑sheet placed on the present record, however, shows that the notice could not actually be issued even to the said respondent either for want of proper address or for want of process‑fee or on account of negligence of Court officials and the case continued to be adjourned for service of notice on Subedar Khan respondent even, though he had died long time ago. Meanwhile, the file of the. case was sent to the High Court on 1‑7‑1989 for inspection. After the file was received back, notice in the first instance was ordered to issue to the petitioners' counsel for 15‑7‑1990 and later, the notices were ordered to be sent to the parties. At this stage, petitioners moved another application for restoration of the suit citing Subedar Khan and others as respondents therein. This application was filed through Mr. Azizullah Advocate on 5‑11‑1990. In this application, non‑appearance of the petitioners in the suit on 23‑11‑1988 was sought to be justified on the following ground‑.‑ "That one of the plaintiff is residing at Karachi and other at Loralai. While the counsel was on his way from High Court to District Court and on cowing o Court room it was told that the case has been dismissed."

4. The application for restoration of the suit was taken up on 12‑11‑1990 and then on 25‑11‑1990. On the last mentioned date, learned trial Court proceeded to dismiss the restoration application with the following orders:‑

5. Feeling aggrieved, petitioners preferred an appeal in the High Court to assail the validity of the aforementioned order of the Additional District Judge dated 25‑11‑1990. Memo of appeal shows that the defendants who had died during the pendency of the suit were arrayed as respondents. On 5‑6‑1991, this infirmity was pointed out to the counsel appearing for appellants (present petitioners) who then filed an application under Order IV, Rule 17, C.P.C. which was resisted by the coup el appearing on behalf of the legal heirs of defendant/respondent No.

14. Learned counsel for the petitioners stated before the High Court that despite his best efforts, he could not find out the names of legal heirs of the dead persons but finally submitted that he did not want to press the appeal against respondents No. 5 to

10. Appeal qua the said respondents was, therefore, dismissed by the High Court on 11‑8‑1991 and by the same order, appeal against respondents No. 11, 13 and 15 was also dismissed on the ground that no steps were taken by the petitioners to bring on record the legal heirs of the said respondents. Appeal as against legal heirs of respondents No. 1 and 14 was also held to be not maintainable as these two respondents had died in the year 1966 and 1976 and their legal heirs were not impleaded. Appeal against the remaining respondents No. 2, 3, 4 and 12 was, however, heard on merits and finally dismissed by the High Court vide the impugned judgment dated 26‑3‑1992 upholding the order of the learned Additional District Judge dated 25‑11‑1990. The High Court held that both the applications for restoration of the suit were incompetent as they were filed against dead persons without impleading their legal heirs and that the second application was filed long after the order of dismissal of the suit. High Court on perusal of the order‑sheet maintained by the trial Court affirmed the finding of the Additional District Judge that the petitioners had not taken keen interest in pursuing their applications, so much so that even process‑fee was not deposited by them. High Court made a very pertinent observation that the pendency of the 'suit for thirty years by itself "reflects on the interest of appellants which they had shown in disposal of the case". It was also held by the High Court that the petitioners had failed to show sufficient muse in both the applications for their non‑appearance in the suit. For all these reason, petitioners' appeal was dismissed by High Court. 6, We have heard the learned counsel for the petitioners and have perused the record. It is not denied that a number of defendants died during the pendency of the suit but their legal heirs were not brought on the record. learned counsel, however, has sought to explain that the petitioners despite their best efforts could not locate the names and particulars of the legal heirs of the deceased defendants. We are not impressed by this plea. It was for the petitioners who were the plaintiffs in the case to find out by whatever means possible/available the names and particulars of the legal heirs and bring them in record. It appears that the petitioners were not quite serious in prosecuting heir suit which unfortunately remained pending for about thirty years without any progress and was finally dismissed owing to their default as neither they nor their counsel appeared on the date fixed. They also failed to show any satisfactory or convincing reason for their non‑appearance. As noted above, trey moved two applications for restoration of their suit through two different advocates. In the first application filed on the date of dismissal of the suit, it vas stated that their counsel was busy in another case in the Court of Senior Civil Judge, Quetta while in the second application filed after about two years, .t was averred that the counsel was on his way from High Court to District Court when the case was called and dismissed. The reasons given, in the two application are irreconcilable. If, however, both the Advocates were duly engaged by the petitioners, their non‑appearance as also absence of the 9etitioners themselves should have been explained in the very first application which of course was not done. Second application in any case was hopelessly time‑barred. Not only that, learned counsel appearing in support of this petition has not been able to controvert the findings recorded by the learned sigh Court and the Additional District Judge that the petitioners did not seriously pursue: their applications for restoration of the suit inasmuch as they defaulted even in depositing the process‑fee. High Court has also rightly held that both the applications were incompetent as they were filed against the dead persons. Even in the appeal before the High Court, many dead persons were arrayed as respondents and the petitioners failed to implead their legal representatives despite the opportunities given. The petitioners appear to have acted with utmost negligence throughout the proceedings.

7. In view of the foregoing discussion, we are satisfied that the impugned judgment of the High Court proceeded on correct premises, legal as also factual. No case is, therefore, made out for the grant of leave to appeal. This petition is accordingly dismissed and the leave sought is refused. A\.A./M‑2229/S Leave refused.