1988 PLP 1208 (CLC)

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0. IX, R. 4‑‑Dismissal of suit for non‑prosecution Restoration of‑‑No notice of transfer of case from one Court to another was issued to plaintiff /applicant to which applicant was entitled‑‑Order of Trial Court, affirmed by Appellate Court below dismissing suit of plaintiff for non‑prosecution of suit passed after transfer of case, held, was wholly without jurisdiction and question of limitation for filing application for restoration of suit in such circumstances would not arise as no one should suffer for act of Court omitting to issue notice of transfer of case‑‑High Court setting aside illegal concurrent orders of Courts below remanded case with direction that case should proceed from stage for filing of written statement by respondent after transfer of case and same be disposed of in accordance with law. Samiuddin Sami for Petitioner. Syed Iqbal Ahmad for Respondent. Date of hearing: 18th February, 1987. This revision application under section 115, C.P. C. is filed by the plaintiff /applicant against the order of 5th Additional District Judge, Karachi, whereby the 1st Appellate Court confirmed the order of trial Court refusing to restore the suit of the appellant which was dismissed for default on 21‑11‑1978. The following facts are admitted before me. The plaintiff /applicant instituted Suit No.1840 of 1978 in the Court of XIVth Civil Judge at Karachi. This suit was transferred by the District Judge, Karachi to the Court of XVIth Civil Judge as the Court of XIVth Civil Judge was lying vacant. On 27‑9‑1978 when the case was received by transfer from the Court of XIVth Civil Judge, Karachi, it was adjourned by the XVIth Civil Judge (transferee Court) at the request of the defendant's counsel to 17‑10‑1978 for filing of written statement. On 17‑10‑1978 according to order‑sheet of the case the Advocates for the parties were present and on the application of respondent's counsel for extension of time for filing written statement the case was adjourned to 26‑10‑1978. The application filed on 17‑10‑1978 by the respondent's counsel is on record at page 33 of the R&P (second part) and the order of the learned Judge passed thereon does not show that at the time it was granted the counsel for the applicant was also present. On 26‑10‑1978 the diary shows that none was present for plaintiff but the written statement was filed by the respondent‑defendant which was kept on record and the case was adjourned to 21‑11‑1978 for settlement of issues. On 21‑11‑1978 the case was called and it was dismissed at 11‑15 a.m. as none was present. The application for restoration of the suit was presented in Court on 1‑12‑1980 supported by personal affidavit of Mr. Ashfaque Hussain, Advocate (deceased) who was then representing the plaintiff in the suit. In his affidavit the learned counsel specifically stated that he never appeared in the Court of XVIth Civil Judge, Karachi, after transfer of the case to that Court by the District Judge, as he was informed by the reader of Court of XVIth Civil Judge, Karachi that he will get a notice of transfer and as such he was not aware of the further proceedings which took place after 23‑9‑1978. A counter‑affidavit was filed by the respondent to the application for restoration but it was quite clear from the counter affidavit of respondent that the plaintiffs' counsel was not appearing in the suit after transfer of the case. The learned trial Court as well as the learned 1st appellate Court on the basis of diary of the case, dated 17‑10‑1978 reached the conclusion that the plaintiff/ applicant's counsel was aware of the date of hearing and the transfer of the case and as such the application was barred by limitation. The learned counsel for the applicant contends that the conclusion arrived at by the learned Courts below in holding that the applicant's counsel had notice of the transfer of the case to the Court of XVIth Civil Judge are based on no evidence nor they find support from the material on record. In order to ascertain the true facts I called for the record of the suit and I find that on 17‑10‑1978 although the diary of the case shows presence of both the counsel it is significant that on the date the defendant's counsel filed application for extension of time for filing the written statement which was allowed by the Court but the order passed thereon by the learned XVIth Civil Judge does not show presence of the plaintiff's counsel. Apart from it the copy of the written statement was never supplied to the counsel for the applicant /plaintiff which is .still on record and this fact goes to support the contention of applicant that his counsel never appeared in the Court of XVIth Civil Judge Karachi after transfer as he had no notice of the transfer of the case. In addition to it, the counter affidavit filed by the respondent before the trial Court also supports the contention of the applicant that his counsel never appeared before the transferee Court after transfer of the case. It cannot be disputed that after transfer of the case from the file of XIVth Civil Judge to the Court of XVIth Civil Judge the plaintiff /applicant was entitled to a notice of such transfer in the absence of knowledge about the transfer. It is an admitted position that after transfer of the case no notice of transfer was issued either to the plaintiff or his counsel. The facts mentioned above support the contention of applicant that he had no notice of transfer of the case from Court No.XIVth to Court XVIth. In these circumstances the order dismissing the suit A for non‑prosecution passed on 21‑11‑1978 was an order wholly without jurisdiction and as such the question of limitation in such circumstances does not arise as no one should suffer for the act of the Court. I accordingly accept this revision application, set aside the order of the Courts below and remand the case back with the direction that the case will proceed from the stage for filing of written statement by the respondent and will be disposed of in accordance with the law. There will be no order for costs in circumstances of the case. H.B.T./K‑70/K Case remanded.