2012 PLP 656 (SCMR)

JAWWAD S. KHAWAJA, J.

The petitioner-plaintiff Mst. Surraya Parveen impugns the orders passed by the learned Civil Judge, Sadiqabad dated 17-1-2004, the revisional order passed by the learned Additional District Judge, Sadiqabad dated 26-3-2005 and the judgment dated 18-10-2010 whereby Writ Petition No.2918 of 2010 filed by the petitioner was dismissed.

2. This case has a long drawn-out and chequered history. It is, therefore, necessary to give in some detail, a narration of the relevant facts necessary for adjudication of this petition. The dispute between the parties relates to land measuring 7 kanals 8 marlas and 8 sarsahis comprised in Khata No.22/18 as per Jamabandi for year 1978-79 located in Chak No.10/N.P., Tehsil Sadiqabad. It is not in dispute that the petitioner-plaintiff was owner of the suit land. According to the respondents the petitioner-plaintiff executed and registered a power of attorney on 29-3-1982 in favour of Muhammad Abdullah, respondent No.6. On the basis of the said power of attorney the said Muhammad Abdullah executed a sale-deed dated 15-4-1982 in favour of Muhammad Hanif late husband of respondent No.1 and father of respondents Nos.2 to

5. On 11-12-1982, the petitioner-plaintiff filed a suit against Muhammad Hanif seeking cancellation of the sale deed dated 15-4-1982. It was her case that the power of attorney in favour of Muhammad Abdullah was forged and therefore, the sale deed was liable to be cancelled. Muhammad Hanif resisted the suit.

3. On 24-2-1987 the petitioner-plaintiff acting through her attorney Syed Hassan Ahmed and the defendant Muhammad Hanif in person stated in Court that they wished to resolve their dispute through arbitration. Each party appointed their respective arbitrators who were, in turn, authorized to appoint a Sarpunch. The three were to act as arbitrators in the case. The arbitrators entered upon the reference and rendered their award dated 15-3-1988. On 30-5-1989, with the consent of the parties the award was set aside and the matter was sent back to the arbitrators for making a fresh award in accordance with law. Thereafter, the Sarpunch Maulana Abdul Ghafoor and the arbitrator appointed by the petitioner-plaintiff namely Syed Khalid Shehzad, withdrew from the arbitration. An application was, therefore, made for appointing a Sarpunch so that the arbitration could proceed. This application, however, was dismissed on 18-7-1990 when the Court decided to proceed with the suit itself and the case was fixed for recording the evidence of the petitioner-plaintiff.

4. Feeling aggrieved of the aforesaid order the defendant Muhammad Hanif filed an appeal. This appeal was allowed on 20-5-1996. It is at this juncture that the travails of the petitioner commenced in earnest. The learned Additional District Judge while allowing the appeal remanded the case to the learned trial Court "with the direction to proceed in the suit in accordance with the provisions contained in section 8 and other relevant provisions of the Arbitration Act". The parties were directed to appear before the trial Court on 26-5-1996. However, the ahalmad of the learned Additional District Judge reported that the Court of Sardar Ahmed Khan Maikan which was the trial Court, stood abolished without replacement. On the basis of this report, the file was sent to the learned Dstrict Judge, Rahimyar Khan for making appropriate orders. On 26-5-1996, the learned District Judge through an administrative order entrusted the case to the Court of Syed Imam Ali Shah, Civil Judge, Sadiqabad and the parties were directed to appear before the said Court on 2-6-1996. On that date i.e. 2-6-1996, the following order was passed:--

5. At this point it is relevant to note that the order of the learned Additional District Judge sending the file to the learned District Judge, Rahimyar Khan, the order of the learned District Judge dated 26-5-1996 sending the case to the Court of Syed Imam Ali Shah and the order dated 2-6-1996 passed by the learned trial Court dismissing the petitioner's suit for non-prosecution were all passed in the absence of the parties and without notice to the petitioner-plaintiff. A long period ensued thereafter during which it does appear that the petitioner made attempts to trace the case file. She also applied to the learned District Judge who ordered an inquiry as to the missing file. A report of the inquiry made on 3-10-2001 indicated that the file was available in Mohafizkhana, D.C. Office Rahimyar Khan.

6. Thereafter, the petitioner-plaintiff filed an application for setting aside the dismissal of her suit. This application was dismissed by the learned trial Court on 17-1-2004 on the short ground that the application was time barred in view of Article 163 of the Schedule to the Limitation Act. A revision petition filed by the petitioner was dismissed by the learned Additional District Judge Sadiqabad on 26-3-2005 on the same basis and the order of the learned trial Court was affirmed. Likewise, Writ Petition No.2918 of 2010 (filed originally as a Revision Petition) was dismissed by the learned Judge in Chamber in the High Court on 18-10-2010.

7. All three Courts below have held that Article 163 of the Schedule to the Limitation Act was applicable and therefore, the application for setting aside the dismissal of the petitioner's suit should have been filed within 30 days from the date of such dismissal or latest within 30 days of the date she acquired knowledge of such dismissal. On the basis of certified copies obtained by the petitioner it was observed that the petitioner had acquired knowledge of the dismissal of her suit eight months or one year before the filing of her application and therefore, the said application was time barred.

8. The above factual narration is borne out from the record and is not disputed by learned counsel for the respondents. Learned counsel for the petitioner has made a number of submissions to impugn the orders passed by the learned Courts below. It has firstly been contended that the order of 2-6-1996 was an absolute nullity firstly, because it was passed without any intimation or notice of fixation of the case having been given to the petitioner and secondly, because 2-6-1996 was not a date of hearing. It has also been contended that the trial Court was obliged to comply with the order of the learned Additional District Judge who had directed that the dispute between the parties be referred to arbitration after adhering to the provisions to section 8 of the Arbitration Act, 1940. It was argued that the order of the learned Additional District Judge dated 20-5-1996 could only have been complied with after issuance of notice to the parties so that the dispute between them could be decided through arbitration.

9. The aforesaid contentions of learned counsel for the petitioner have much merit. He has referred to the case titled Muhammad Qasim v. Moujuddin (1995 SCMR 218). The cited precedent clearly supports the legal proposition that the petitioner could not have been non-suited on account of her absence on 2-6-1996 because the petitioner had no basis for knowing that her case was listed for hearing on that date or that it had been transferred to the Court of Syed Imam Ali Shah, Civil Judge, Sadiqabad through an administrative order passed by the learned District Judge, in her absence. These facts are clearly established from the factual narration given above. The other submissions of learned counsel, particularly those based on the order of the learned Additional District Judge dated 20-5-1996 and the direction to the learned trial Court to proceed in accordance with Section 8 of the Arbitration Act, are also well-founded. The learned trial Court was duty bound to comply with the direction of the learned Additional District Judge dated 20-5-1996 and in order to do so was obliged to issue notice to the parties.

10. Learned counsel for the petitioner further argued with some justification that the petitioner could not be prejudiced and denied her legal right to adjudication/arbitration on merits, on account of a failure of the Court to comply with binding directions and equally binding requirements of the law requiring notice to the petitioner of the fixation of her case on 2-6-1996.

11. The above referred circumstances, which are not in contention, show clearly that the petitioner was not at fault and, therefore, cannot be blamed for the dismissal of her suit for non-prosecution. The error, if any, lay with the learned trial Court which had not gone through the record to ascertain the background which had led to the transfer of the case to it. The question of limitation in respect of the application seeking restoration of the suit would only be relevant if the dismissal itself was proper. Since it was not, it has to be set aside because, as rightly pointed out by learned Advocate Supreme Court, it is the Court which has to rectify its error. Learned Advocate Supreme Court for the respondents founded his case primarily on the plea that the petitioner had been indolent in filing a belated restoration application despite knowledge that her suit stood dismissed for non-prosecution. On this basis it was contended that even if the order dated 2-6-1996 was void, the relief under Article 185(3) of the Constitution being discretionary, should be declined. This submission will be dealt with shortly.

12. It is not necessary in this case, to decide as to whether Article 163 of the Schedule to the Limitation Act was applicable in the case as argued by learned counsel for the respondents or that it was Article 181 of the said Schedule which was applicable as urged by learned Advocate Supreme Court for the petitioner. As contended by learned counsel for the petitioner, the fact that the suit of the petitioner was dismissed without notice to her on a date i.e. 2-6-1996 which was not a date of hearing, is sufficient for the purpose of holding that the dismissal of the suit for non-prosecution is not legally sustainable.

13. In addition to the above, learned counsel for the petitioner pointed out that the learned Judge in Chamber had fallen in error by holding that "the petitioner did not remain vigilant to conduct her case even [sic] the matter went up to the Supreme Court of Pakistan wherein petitioner filed CPLA No.447 of 1996 which was dismissed on 11-1-2000 and then review petition was filed which was also dismissed on 24-4-2001," It is apparent from the impugned judgment that this circumstance weighed heavily with the learned Judge in Chamber and contributed towards the dismissal of the Writ Petition filed by the petitioner. Learned counsel for the petitioner, however, categorically stated that the petitioner had never filed any CPLA or review petition before the Supreme Court. Learned counsel for the respondents conceded that no such CPLA or review petition had been filed by the petitioner. The finding of the High Court that the petitioner had not been vigilant, is not based on the record.

14. As noted above, the mainstay of submissions advanced on behalf of the respondents was that discretionary relief under Article 185(3) of the Constitution should not be allowed to the petitioner because she had become aware of the dismissal of her suit atleast eight months prior to the filing of her application for setting aside such dismissal but had been negligent in not filing her application for restoration earlier in time. This contention is misconceived firstly because the petitioner cannot be allowed to suffer due to an error of the Court. Secondly, valuable property rights of the petitioner are at stake and she is entitled to adjudication of the same on merits as she is not the cause of the problem being faced by her. It was also contended that the petitioner had deliberately filed an' incompetent appeal which was converted into a revision petition in order to benefit from an application for condonation of delay under section 5 of the Limitation Act. This contention is without merit and has been rightly repelled by the learned revisional Court which held that "no date was given by (the) copying agency.... for delivery of copies, therefore, limitation would run from the date when copies were delivered to the [petitioner]. In this case, the (petitioner) received copies on 7-12-2004 and on the same date filed this appeal". The revision petition as such was held to be within time. This finding is not open to exception.

15. The above are our detailed reasons for the short order passed on 1-2-2012 in the following terms:-- "For reasons to be recorded separately, this petition is converted into appeal and is allowed. As the matter is pending adjudication since 1982, the case is sent to the learned District Judge, Rahimyar Khan who shall entrust it to a competent trial Court, which shall in turn, try and decide the lis expeditiously, preferably within the current calendar year. Since both the parties are represented, they are directed to appear before the District Judge, Rahimyar Khan on 1-3-2012. The office shall make sure that the order is conveyed to the learned District Judge, Rahimyar Khan well before 1-3-2012". M.H./S-4/SC Case remanded.