1992 PLP 1763 (MLD)

The respondents filed a suit under section 9 of the Specific Relief Act against the applicants praying for a decree for possession of house bearing House No.1‑H‑9/23, Nazimabad, Karachi and for money decree at the rate of Rs.20 per day with effect from the date of the institution of the suit viz. 5‑5‑1980 till the date of possession. The applicants contested the suit and filed their written statement. The applicants also filed an application under Order VII, rule 11, C.P.C. for rejection of the plaint. This application was dismissed by the learned Civil Judge. The applicants aggrieved by the order filed revision bearing No.40/85 which was dismissed on 3‑11‑1985 for non‑prosecution. After the dismissal of the revision application the said suit proceeded and on 4‑8‑1987 it was ordered that notices be issued to the parties as well as their respective counsel. The counsel for the respondents waived notice on 21‑9‑1987 but neither the applicants nor their counsel could be served. Accordingly on 21‑2‑1988 it was ordered that the defendants be served through affixation of notice on the outer door of the premises held by them and also on the Court Notice Board. On the next date viz. 4‑4‑1988 notice was returned with the endorsement of the bailiff who was directed to file a statement on oath. The bailiff filed his statement on oath on the basis of which service on the applicants was held good on 24‑4‑1988. Subsequently, on 16‑7‑19&S, deposition of the respondents was partly recorded as Exh.P/1 to Exh. P/5, whereafter the matter was adjourned to 6‑8‑1988 for further evidence of the respondents. It was however recorded by the learned Judge that since applicants were absent no cross‑examination of the respondents could take place. On the said adjourned date, parties' Advocates were present but the case was adjourned due to bad light for 2‑1‑8‑1988 fur evidence, on which date and also on subsequent dates, the matter could not proceed for one reason or the other However, on 5‑1‑1989, the learned Judge recorded the presence of the parties and the Advocate for the applicants and adjourned the matter to 24‑1‑1989 for evidence. Again the matter did not proceed on this date and other adjourned dates as the Court remained vacant. However, on 23‑7‑1989 the respondents adduced further evidence and closed their side. The case was then adjourned to 20‑8‑1989 for evidence of the applicants. On this date the case was first called at 9‑00 a.m., but was put off first at 11‑00 a.m. then at 12‑30 p.m. due to the absence of the applicants and ultimately their side was closed and the matter was adjourned to 10 9‑1989 for final arguments. Subsequently on 9‑10?19811, the applicants moved an application for re‑opening their side and praying for setting aside the orders dated 16‑7‑19813 and 23‑7‑1989 and restoring the suit to its original position as on or before 16‑7‑1988. This application was dismissed on 20‑5‑1990. Finally, on 5‑8‑1990, the suit was decreed. It may be stated here that the applicant No.] is the mother and guardian ad‑litem of applicants Nos.2 to 4 and in this revision the applicants have impugned the said orders and the decree passed against them. In support of their application for re‑opening their side, applicant No.1 filed an affidavit stating that the applicants were being represented by Mr. Mukhtar Ali Rehmani, who died in the year 1986 and although she repeatedly visited his office, she found it closed. She subsequently came to know that the said Advocate died in 1980: Thus she was not aware of the proceedings in the suit. It was averred that after the disposal of the revision, a Court motion notice ought to have been served on her which was not served. It was with the connivance of the bailiff of the Court that the respondents succeeded to get a false report regarding service on her. Neither the bailiff informed her regarding pendency and transfer of the case nor any notice was pasted at her address. It was on 9‑9‑1989 that she came to know from the respondents who came down to her residence demanding possession of the house that the suit was decreed against her. She accordingly rushed to the Court and engaged an Advocate. It was further urged by her that since her Advocate died in the year 1986 she could not get the opportunity to cross‑examine the respondents. Respondents contested the said application stating that the side of the defendants was closed on 28‑8‑1989 and as such the application filed by the defendants after 3‑1/2 months was time‑barred and not maintainable. It was further contended that earlier the applicants' revision was dismissed for non-?prosecution. After the dismissal of the said revision, the case was transferred to lower Court for. further proceedings. The applicants were duly served by the bailiff and also by pasting of Court notice and it is false to state that they were not aware of the proceedings. It was denied that respondents went to the house of the applicants and demanded possession thereof. It was pointed out that the applicants had engaged two Advocates in the suit, namely, Mr. Mukhtar Ali Rchmani and Mr. Raja Sikandar Yasar, the former filed his power earlier and the latter Advocate filed his power later on 5‑3‑1981. The contention that the applicant No.1 was not aware of the proceeding is patently erroneous on the face of record. It was candidly conceded by Mr. Talmeez Burney, learned counsel for respondents, that a revision would lie against the order passed by the learned Civil Judge dated 20‑5‑1990, but no appeal or review would lie against a judgment or decree passed under section 9 of Specific Relief Act. He, however, contended that in very exceptional circumstances a Court should interfere in revision as section 9 of Specific Relief Act provides filing of a separate suit by a party on the basis of his title. Learned counsel for applicants urged before me that every interlocutory order is ultimately merged with the final order, judgment or decree and a party may wait and see as to the decision of the case, whereafter he may choose to file a revision in respect of the former. The contention of learned counsel for applicants Mr. S.M. Akhtar Rim is that there was a failure on the part of the learned Civil Judge to exercise jurisdiction vested in him and he also manifestly committed material irregularity. It was pointed out that Mr. Mukhtar Ali Rehmani, Advocate died in 1986 after the dismissal of revision filed by the applicants which fact was not denied by the respondents. Besides, there is nothing on record to show that the applicants were avoiding service of notice or were not traceable which calls for service on them by affixation of notice at their address. Similarly there is not an iota of evidence that the applicants refused to receive notices issued by the Court. There is also no independent witness to the affixation of the Court Notice at the address of the applicants. The learned Judge in haste without consideration these aspects had erroneously held service on the applicants good. The entire case of the applicants is that they were condemned unheard in their absence and that service on them was bad in law. Mr. Talmeez Burney. learned counsel for respondents, on the other hand, brought to my notice the fact that the applicants had engaged not one but two Advocates, namely, Mr. Mukhtar Ali Rehmani on 5‑5‑1980 and Mr Raja Sikandar Yasar on 5‑3‑1981 and, therefore, the contention of the learned counsel for applicants, Mr. 4S.M. Akhtar Rizvi is not correct. He further pointed out that it is clear from the diary maintained by the learned Civil Judge that on 6‑8‑1988 and 5‑1‑1989 the applicants and/or their Advocate were present in the Court and, therefore, the plea as to the non‑service of notice issued by the Court does not appear to be correct. I have heard the arguments of the learned counsel for the parties and have looked into the record of the case. Admittedly, the first revision filed by the applicants was dismissed in 1985 whereas the said Advocate for respondent' No.1 died in 1986. But this is not all. She had engaged another Advocate subsequently, namely, Mr. Raja Sikandar Yasar on behalf of applicants. The diary of the learned Civil Judge clearly states on two occasions viz. 6‑8‑1988 and 5‑1‑1989, the presence of the applicants' Advocate and on one occasion,' her own presence. Despite this the applicants moved their application for opening their side as late as 9‑10‑1989 for which there was no plausible explanation. Even the date when the applicants had obtained the knowledge of the passing of the decree has not been disclosed by the applicants. No case of failure to exercise jurisdiction by the learned Civil Judge or of any material' irregularity has been made out by the learned counsel for the applicants. The question of service or non‑service of Court notice also does not arise, as the applicant No.1 and her duly appointed counsel made appearance before the Court. There is, therefore, no substance in the Revision which is hereby dismissed with costs. A.A./B‑221/K????????????????????????????????????????????????????????????????????????? Revision dismissed.