1980 PLP 1942 (CLC)

Ch. Muhammad Yusuf for Petitioners. Muhammad Akram for Respondents. Date of institution : 20th June, 1979. This revision petition is directed against order dated 20th May, 1979 made by the learned Sub-Judge, Kotli, on a second application moved by one of the plaintiffs-petitioners to the effect that the previous applica tion for restoration of the suit dismissed in default was adjourned to 2nd October, 1975 thereby ordering restoration of the suit but neither the original file has been restored nor he was called on to appear before the Court to hear a proper order to be made by the Court. On this, the learn ed Sub-Judge, Mr. Mushtaq called for a report of the office which was to be made on 4th October, 1975. This date being a holiday, the report was then to be made on the 5th of October, 1975 but the Clerk of the Sub Judge did not submit -any report with regard to the application for restoration of the suit filed by the plaintiff. Both these applications were in a way for restoration of the suit and the second one was also made to know as to what was the fate of his previous application and so as to obtain a date for further proceedings accordingly. The Sub-Judge, who called for the report, did not at all care to look for the report called for from his office and had been going on adjourning instant application necessarily without any proceedings effectively taken bar him till he appears to have been transferred from Kotli. His successors also followed the suit and a question (for nothing') was formulates) see whether any previous application for restoration of the suit was made by the plaintiff petitioner or not? The plaintiff-petitioner in order to prove that a previous application was in fact made by him, adduced `Register Peshi' of the Court in evidence, the entries wherein were testified by Muhammad Aslam Reader of the Court and it is then found. that the previous application for restoration of the suit was accordingly submitted by the plaintiff-petitioner on 20th July, 1975. But the learned Sub-Judge, without search of the record, has held otherwise that no such application was made by the plaintiff-peti tioner and it was so done after lapse of a period of more than 3J years. A very simple matter, as it is, was dealt with by the Sub-Judges very irrespon sibly and did not even care to see that the precious time of the Court and parties was wasted for nothing. A perusal of the interlocutory orders shows that 76 adjournments for such a simple matter i. e. for tracing out the previous file in respect of restoration of the suit were made, whereas to perusal of the record of the case, we were able here to track out the previous application sub mitted by the plaintiff-petitioner for restoration of the suit dismissed in default with a very little effort. After looking into this state of affairs concerning the proceedings of the Court, one is pained to say that a lot of Sub-Judges dealing with the case were unable to trace out Civil Miscellaneous Application No. 41 of 20th July, 1975 Which was also incuriously dismissed in. default on, 30th November; 1975 during the pendency of the second one which was made to know the result of the previous application, as it was not brought before the Court on the date fixed by the Court for proper orders to be made. A perusal of order dated 21st September, 1975 shows that the previous application was adjourned to 2nd October, 1975 as was correctly asserted by the plaintiff-petitioner. The date 2nd October, 1975 appears to have been interpolated by the Clerk concerned and thus it was shown to be 22nd October, 1975 instead of 2nd October, 1975. Nobody dealing with this case below including the lawyers of the parties cared to see that the previous application for restoration of the suit was very much there in the Court but stone of them took a trouble to go through the record so as to save the time and help the poor litigants to go back .to their homes after obtaining a verdict from the Court well in time, The Sub-Judge will do well if he takes to task the Clerk who had been going on writing interlocutory orders without knowing the implications thus created by him. As a matter of fact, interpolation of the actual date fixed for 2nd October, 1975 has caused all this trouble and a;1 the concerned Presiding Officers of the Court of Sub-Judge may search their hearts to see as to how they had been faring in this case in respect of a very simple matter. From their dealing with such a simple matter one may be constrained to say that they have not shown any worth its the administration of justice as warrant ed by law in this case and have also proved a failure in performance of duty assigned to them. How the learned Sub-Judge then could say in presence of file No. 41 of 1975, as indicated earlier, that no previous application for restoration of the suit was ever made by the plaintiff- petitioner. What a poor performance was shown by the Sub-Judge in dismissing the application for restoration on 30th November, 1975 which was not the date fixed for hearing of the application. The actual date i.e. 2nd October, 1975 was mischievously changed to 22nd October, 1975 by the Clerk and the Sub-Judge was also not present in the Court on 22nd October, 1975 when the Clerk of his Court adjourned the application to 22nd November, 1975 and it was not made known to the plaintiff- petitioner who had been telling the Court about the dates fixed by the Court on his previous application. Again, this application was not brought before the Sub-Judge on 22nd November, 1975. It was on 28th November, 1975 that the same writ presented to him for proper orders to be made but he, instead of issuing notices to the plaintiff, postponed the application to 30th November, 1975 when it was illegally and arbitrarily dismissed in default. How could he in the circumstances above, legally dismiss the application for restoration of the suit in default on 30th November, 1975. 1 am obliged very rightly to feel that a clear miscarriage of justice occurred in disposal of both the applications for restoration of the suit. The second one is to be taken into account in continuity of the previous one. The parties had been contesting the second application before the Court below which was in continuity of application dated 20th July, 1975. Thus, the applications for restoration of the suit are well within time and the illegal order which was made behind the back of the plaintiff-petitioner, cannot be allowed to get the period of limitation run out. Therefore, for the reasons above, this revision petition is accepted and the impugned order is set aside and at the same time order dated 30th November, 1975 illegally made by the Sub-Judge, is also set aside in exercise of the inherent powers vested in the High Court under section 151, C. P. C. and then setting aside the order dated 15th July, 1975, the restoration of the suit is ordered to its original number which shall accordingly be entered in the register concerned so as to give it currentness for hearing and disposal of the same in accordance with law by the Sub-Judge. The parties are directed to appear in the Court of Sub. Judge, Kotli, on 9th February, 1980. M. Y. M. Revision petition accepted.