2010 PLP 3025 (YLR)

CH. MUHAMMAD TARIQ, J.

Learned counsel for the petitioners contends that the petitioners/plaintiffs filed a suit for declaration in the year 1975 against Mst. Sakina Bibi whereby the plaintiff challenged the judgment and decree dated 24-4-1969 on the ground of fraud and forgery. The suit was vehemently resisted by Mst. Sakina Bibi. During the pendency of suit, Mst. Sakina Bibi and Muhammad Raheem both died and they were represented by their legal heirs. The issues were framed by the then learned Senior Civil Judge, Sargodha and the case was fixed for evidence of the plaintiffs.

2. That on 1-12-1999, the case was further adjourned for the evidence of the plaintiffs/petitioners subject to payment of costs of Rs.50. On 2-12-1999, the learned trial Court dismissed the suit under Order IX, Rule 8, C.P.C.

3. That on 7-12-1999, the plaintiffs/ petitioners filed an application for the restoration of suit by the learned trial Court dismissed the application for restoration of the suit. The order of dismissal was assailed in appeal but it was also dismissed, hence, the civil revision.

4. Learned counsel for the petitioners/ plaintiffs contends that they filed the application for restoration of suit on 7-12-1999 just after five days. The valueable rights of the petitioners are involved but the learned trial Court has dismissed the application for restoration of suit as well as appeal and has not applied his judicial mind. Further contends that the learned trial Court has dismissed the application in a hasty manner. The learned trial Court shall have framed issues and after recording of evidence, the application for restoration of suit shall be decided but the learned Courts below ignored this fact that the counsel for the plaintiffs/ petitioners was busy before another Court in performance of his legal duties, therefore, civil revision be allowed, impugned orders passed by both the Courts below be set aside, suit of the plaintiffs/ petitioners be restored and be directed to be decided afresh on merits.

5. The learned counsel for respondent No.1 has also supported the version of the petitioners and has made statement that he will have no objection if suit is restored.

6. On the other hand, learned counsel for the remaining respondents has vehemently opposed the civil revision. He has contended that non-appearance of the petitioners or their learned counsel was deliberately as one day before, the case was adjourned by the learned trial Court with a costs of Rs.50. Further contends that there was a direction for early disposal of this case. Further contends that since the original application for restoration of case has not been signed by the petitioners so the learned trial Court has rightly dismissed the application.

7. Arguments heard. Record perused.

8. Perusal of record shows that the case was fixed for evidence of the plaintiffs/petitioners on 1-12-1999. On 1-12-1999, the case was called five times but neither the plaintiffs nor his evidence nor learned counsel was present in the Court so the case was adjourned for 2-12-1999 on payment of costs of Rs.50. Again on 2-12-1999, the case was called for six times, firstly case was called at 10-10- a.m. and lastly it was called at 3-00 p.m. All the times counsel for the respondents/defendants was present but on behalf of the plaintiffs/petitioners neither the plaintiffs nor their evidence nor learned counsel was present so at 3-00 p.m. the suit was dismissed under Order IX, Rule

8. C.P.C.

9. Admittedly, on 7-12-1999, a petition for restoration of suit dismissed for non-prosecution was moved the learned counsel for the petitioners/plaintiffs but neither it was signed nor it was supported by an affidavit of the learned counsel, nor there is a plausible reason regarding their absence. Similarly, the reasons for absence of the petitioners/plaintiffs were not pleaded .in the petition, which were necessary for the restoration of the suit. Since the contents of the application for restoration of the suit were not convincing, therefore, it does not require that issues shall be framed and after recording of evidence, the application shall be decided.

10. As a result of above discussion, learned counsel for the petitioners/plaintiffs failed to make out a case of interference. The civil revision is without merit, same is dismissed. M.U.Y./M-356/L Petition dismissed.