2010 PLP 1957 (YLR)

IJAZ-UL-AHSAN, J.

The petitioners challenge order dated 15-4-2009 passed by the learned Civil Judge, Gujranwala and judgment dated 6-11-2009 passed by the learned Appellant Court and pray that the plaint filed by the respondents may be rejected and order dated 24-9-2007 passed by the learned Civil Judge may be upheld and maintained.

2. Respondent No.1 filed a suit for declaration against the predecessor in interest of the petitioners challenging the vires of exchange deed dated 26-2-2003. During pendency of the suit, the predecessor in interest of the petitioners died. The petitioners were therefore, impleaded as parties. Subsequently, respondents Nos. 2 to 6 filed an application under Order I, Rule 10, C.P.C. to be impleaded as defendants. Consequently, respondent No.1 was directed to submit an amended plaint vide order dated 25-1-2007. Respondent No.1 failed to file an amended plaint which led to dismissal of the suit vide order dated 24-9-2007. Respondent No.1 filed an application under Order XLVII, Rule 1 C.P.C. read with section 151, C.P.C. for review of order dated 24-9-2007. The said application was allowed vide impugned order dated 15-4-2009 and respondent No.1 was allowed to file an amended plaint. The petitioners assailed order dated 15-4-2009 by way of an appeal. The same was dismissed vide impugned judgment dated 6-11-2009.

3. The learned counsel for the petitioners submits that the learned subordinate Courts have fallen into error in allowing respondent No.1 to file an amended plaint. He submits that the order of dismissal of the plaint was a decree against which an appeal is provided under the provisions of C.P.C. He, therefore, submits that the review application was not maintainable and the same was required to be dismissed. He adds that the impugned order and judgment are misconceived and a result of arbitrary and perverse exercise of jurisdiction by the learned subordinate Courts which has resulted in miscarriage of justice.

4. Notices were issued to the respondents. Respondent No.1 has appeared in person. He states that he cannot afford a counsel, therefore, the matter be decided on the basis of record available before this Court.

5. I have heard the learned counsel for the petitioners at length. The record indicates that the suit was filed on 28-10-2003. One of the defendants died during pendency of the suit and respondent No.1 was directed to implead the legal heirs of Muhammad Mansha. Respondent No.1 was granted opportunities to file an amended plaint but he failed to do so. Ultimately on 24-9-2007, the suit of respondent No.1 was dismissed on account of failure to file an amended plaint.

6. I have gone through the order sheet, which indicates that on 21-7-2007, respondent No.1 was granted last opportunity to file amended plaint subject to payment of cost and the matter was adjourned to 15-9-2007. However, on the adjourned date the learned Presiding Officer was on leave and the case was adjourned for filing of amended plaint on 24-9-2007. Since the Court was on leave on 15-9-2007, order dated 21-7-2007 did not remain in the field, since the next adjournments were routine adjournments and penal action could not be taken against respondent No.1. Subsequent adjournments could not be termed as adjournments given on the request of respondent No.1. It is settled law that where the case is not adjourned on the request of a party, such party cannot be visited with penal consequence on the subsequent date. In this view of the matter, order dated 24-9-2007 was not sustainable. The respondents subsequently filed an application for review of the said order, the same was allowed vide order, dated 15-4-2009 subject to payment of cost of Rs. 2000. In view of the fact that there was a patent illegality and error apparent on the face of the record on the part of the learned trial Court, the C review application was clearly competent, the same was rightly entertained and was allowed to avoid an obvious injustice, which would have been caused to respondent No.1, if he had been non-suited on the basis of a technicality.

7. The learned counsel for the petitioners has not been able to point out any illegality, material irregularity or misreading or non-reading of evidence by the learned subordinate Courts. The orders passed by the learned subordinate Courts are just fair and based upon correct appreciation of the law. I am not persuaded to interfere in the orders of the learned subordinate Courts. Consequently this petition fails and it is accordingly) dismissed. M.U.Y./I-24/L Petition dismissed.