P L D 1976 Supreme Court 308 (PLP)

MUHAMMAD GUL. J.‑This petition seeks a review of the order of this Court dated the 30th May 1974, in the circumstances set out below. Civil Appeal No. 3 of 1968 was filed by leave of this Court by Syed Muhammad Zaki and his nephew Syed Shafqat Ali, in which the contesting respondent was Maqsood Ali Khan. He died during the pendency of appeal on 15‑4‑1970 but no application for the impleadment of his legal representatives was moved until 26‑4‑1971 which was beyond time by 286 days. On an application moved by the two appellants for condonation of delay, and setting aside the abatement, a learned Judge of this Court by order dated 24‑5‑1973 held that the appeal had abated and that there was no ground for setting aside the abatement qua Syed Muhammad Zaki but that Syed Shafqat Ali had shown sufficient cause and therefore abatement qua him was set aside and as respects his rights the appeal was allowed to proceed on merits. Two miscellaneous applications were moved under rule 2 of Order V of the Rules of this Court for a reconsideration of the order of the learned Judge dated 24‑5‑1973. One of these applications was by Syed Muhammad Zaki for a reconsideration of the order dated 24‑5‑1973 so far as it refused to set aside abatement qua him. The other application dated 20‑6‑1973, was by the legal representatives of the deceased respondent (hereinafter called the applicant) for a reconsideration of the aforesaid order so far as it operated in favour of Syed Shafqat Ali and prayed that the main appeal be declared to have abated is toto. Both these applications were heard together on 1‑3‑1974 and the Court after taking into consideration the ambient circumstances, by order dated the 30th May 1974 came to. the conclusion that the appeal as a whole should be heard and determined on merits, the operative portion of the order reads : "However, as pointed out in the beginning, delay has already been condoned so far Syed Shafqat Ali is concerned, and, therefore, qua him, the appeal will proceed on merits. In these circumstances, it would, in my opinion, be proper to condone the delay in the case of the petitioner, also, so that the appeal proceeds as a whole and not partially." However, the order did not go so far as to dismiss in express terms the application moved by the applicants. The applicants by this miscellaneous application seek a review of the order of the Court dated 30th May 1974 on the ground that the Court by an oversight had omitted to dispose of their application for a reconsideration of the order of the learned Judge dated 24‑5‑1973 in so far as it had set aside the abatement of appeal, qua Syed Shafqat Ali appellant by condoning the delay. We have heard Mian Fazle Mahmood, applicant's learned counsel and Mr. Tanvir Ahmad, learned Advocate‑on‑Record for the respondents at some length. I am satisfied that it is implicit in the order of this Court dated the 30th May 1974 that the applicant's miscellaneous application seeking reconsideration of the order of the learned Single Judge of this Court stood dismissed ipso facto when the Court decided to hear the whole appeal on merits. This was in keeping with the well known principle that the Courts more particularly the superior Courts shall always lean in favour of determination of cases brought before them on merits unless there are compelling reasons to the contrary. The order of the learned Single Judge of this Court had taken into consideration the circumstances which had prevented Syed Shafqat Ali from applying to the Court within the normal period of limitation to implead the applicants in place of the late Maqbool Ali Khan. On that view of the matter therefore no sufficient ground is made out for the review of the order dated the 30th May 1974. The application is accordingly dismissed with no order as to cost. SALAHUDDIN AHMED, J.‑I agree. ANWARUL HAQ, J.‑I agree. MUHAMMAD AFZAL CHEEMA, J.‑I agree. S. A H. Application dismissed.