2017 PLP 129 (CLCN)

MUHAMMAD HUMAYON KHAN, J.

This Civil Misc. Appeal under Order XLIII, Rule 3, C.P.C. is filed against the Order dated 11.06.2015 passed by the learned Additional District Judge, Kambar, in Civil Reference No. 02 of 2005, whereby, the learned Additional District Judge dismissed the application under Order IX, Rule 9, C.P.C. filed by the appellants.

2. Since the appellants have neither pleaded material facts in the memo. of appeal nor filed required pleadings along with the memo. of appeal, I took the relevant facts of the matter from the learned counsel for the parties during arguments.

3. The relevant facts of the case in nutshell for the disposal of this appeal are that the evidence of the appellants/plaintiffs was closed and the matter was fixed for evidence of the respondents/defendants on 17.11.2012, when the learned Additional District Judge dismissed the matter for non-prosecution due to the absence of the appellants and their learned counsel. The appellants filed an application under Order IX, Rule 9, C.P.C. for setting-aside the said Order dated 17.11.2012, which was dismissed by the learned Additional District Judge vide Order dated 11.06.2015. Against this Order, the appellants have filed this appeal under Order XLIII, Rule 3, C.P.C.

4. I have heard the learned counsel for the parties and perused the material available on the record.

5. The learned counsel for the appellants contended that on 17.11.2012 the instant matter was fixed for evidence of the respondents/defendants and hence there was no justification to dismiss the instant matter for non-prosecution. He further contended that the law favours decision on merits and not upon technicalities. However, he has not cited any case law in support of his contentions.

6. On the other hand, the learned counsel for the respondent No.2 contended that this appeal is not maintainable under Order XLIII, Rule 3, C.P.C. but the appellants should have filed appeal under section 96, C.P.C. He further contended that the appellants since inception of proceedings remained negligent and previously also the instant matter was dismissed for non-prosecution on 05.08.2004, which was restored on 09.09.2004 and therefore the learned Additional District Judge has rightly dismissed their application under Order IX, Rule 9, C.P.C. However, he has also not cited any case law in support of his contentions.

7. The learned DAG and the learned AAG supported the impugned order of the learned Additional District Judge while adopting the arguments of the learned counsel for the respondent No. 2.

8. The first contention of the learned counsel for the respondent No.2 that this appeal is not maintainable under Order XLIII, Rule 3, C.P.C. but the appellants should have filed appeal under section 96, C.P.C. is without any substance and hereby repelled in as much as it is a settled principle of law that an appeal is competent under Order XLIII, Rule 1(c), C.P.C. against an order under Order IX, Rule 9, C.P.C. rejecting an application for an order to set aside the dismissal of a suit. Reliance can be placed upon the case of Muslim Commercial Bank Ltd. v. Messrs Assets Developers (Pvt.) Ltd. and 3 others (1996 MLD (Lahore) 248).

9. The second contention of the learned counsel for the respondent No.2 that the appellants since inception of proceedings remained negligent and previously also the instant matter was dismissed for non-prosecution on 05.08.2004, which was restored on 09.09.2004 and therefore the learned Additional District Judge has rightly dismissed their application under Order IX, Rule 9, C.P.C. is also without any substance and hereby repelled in as much as it is a settled principle of law that the previous default, if any, is not to be taken into consideration while deciding application under Order IX, Rule 9, C.P.C. Reliance can be placed upon the cases of (i) Seth Shivrattan G. Mohatta and another v. Messrs Mohammadi Steamship Co. Ltd. (PLD 1965 Supreme Court 669), (ii) Babu Jan Muhammad and others v. Dr. Abdul Ghafoor and others (PLD 1966 Supreme Court 461) and (iii) Messrs Raheem Steel Re-Rolling Mills and 4 others v. Messrs Karim Aziz Industries (Pvt.) Ltd. (1983 CLC (Lahore) 654).

10. Now coming to the first contention of the learned counsel for the appellants that on 17.11.2012 the instant matter was fixed for evidence of the respondents/defendants and hence there was no justification to dismiss the instant matter for non-prosecution. This contention has force and substance in as much as that admittedly, the evidence of the appellants/plaintiffs was closed and the matter was fixed for evidence of the respondents/defendants. In view of this situation, there was no justification to dismiss the instant matter under Order IX, Rule 8, C.P.C. for non-prosecution but the proper course was to proceed the matter under Order XVII, Rule 3, C.P.C. Accordingly, I came to the conclusion that the Order dated 11.06.2015 of the learned Additional District Judge is without jurisdiction and nullity in law.

11. It is a well settled principle of law that when evidence of the plaintiff has been recorded and the matter is fixed for the evidence of the defendant then the Court has no jurisdiction to dismiss the suit in default under the provisions of Order IX, Rule 8, C.P.C., which are not attracted at all at this stage but the proper course for the Court is to proceed under Order XVII, Rule 3, C.P.C. and to record, evidence of the defendant and his witnesses even in the absenee of the plaintiff and to decide the suit on merits forthwith. My this considered view is fully supported by the cases of (i) Muhammad Haleem and others v. H. H. Muhammad Naim and others (PLD 1969 Supreme Court 270), (ii) Inamur Rehman Gillani v. Jalal Din and another (1992 SCMR 1895), (iii) Messrs Fateh Textile Mills Ltd. v. West Pakistan Industrial Development Corporation (PLD 2008 Karachi 103) and (iv) Shamsuddin v. Jeevat Ram and 4 others (2013 YLR (Sindh) 765).

12. It is also well settled principle of law that if the suit is not fixed for hearing but it was fixed only for hearing of some interlocutory application or for any other miscellaneous proceedings then the Court has no jurisdiction to dismiss the suit for non-prosecution. My this considered view finds support from the cases of (i) Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 Supreme Court 678), (ii) Muhammad Hussain v. Allah Dad and 13 others (PLD 1991 Supreme Court 1104), (iii) Hashim Khan v. National Bank of Pakistan (1992 SCMR 707), (iv) Qazi Muhammad Tariq v. Hasin Jahan and 3 others (1993 SCMR 1949), (v) Allahwala Foundation v. Province of Sindh and others (2002 SCMR 798) and (vi) Messrs Lahore Dioceson Trust Association Ltd. through Attorney and 2 others v. Shafi John and 10 others (2012 CLC (Balochistan) 202).

13. It is also well settled principle of law that no ex parte order should be passed in early hour of the day in hasty manner but the matter should be kept aside and again be called in second part of the day and ex parte order can be passed at the end of the day and the Court should note the exact time of passing ex parte order in the diary/order sheet. My this considered view finds support from the cases of (i) Punjab and Kashmir Bank Ltd. v. Sh. Mahboob Alam (PLD 1966 Lahore 356), (ii) Karam and others v. Noor Muhammad and others (1979 CLC (Lahore) 258), (iii) Sh. M. Sadiq v. Volkart (Pak.) Ltd., Karachi (1979 CLC (Lahore) 291), (iv) Ghulam Muhammad v. Altaf Hussain and another (1981 SCMR 533), (v) Ashraf Bibi and others v. Lahore Municipal Corporation and others (1992 CLC (Lahore) 2350) and (vi) Sohail Hammadi v. Mst. Halima Hamid and 2 others (PLD 1997 Karachi 397).

14. Above are the reasons for the short order dated 07.10.2016, whereby, I have allowed this appeal with no order as to cost with the following directions:- "Learned counsel for the appellants has not complied with office objection since July, 2015. Since this appeal is on a legal point and the learned counsel for the parties have agreed that this appeal may be heard and decided at the stage of katcha peshi, there is no necessity to file the required documents at this stage. However, due to non- compliance of office objection, I direct the learned counsel for the appellant to pay cost of Rs.5,000/- which he should deposit before the Additional Registrar of this Court without fail within seven days and the Additional Registrar should pay the said amount to High Court dispensary, Larkana. I have heard the learned counsel for the parties and perused the material available on the record. For the reasons to be recorded later on this appeal is allowed with no order as to costs and the Order dated 11.06.2015 passed by learned Additional District Judge, Kamber, in Civil Reference No.02 of 2005 is hereby set aside and the said reference is restored to its original position as it was on 17.11.2012. The parties are hereby directed to appear before the learned Additional District Judge, Kamber, on 28.10.2016. Since the matter is old and pertains to year 2005, the learned Additional District Judge, Kamber, is hereby directed to proceed with the matter expeditiously and decide the same within two months in accordance with law." This short order may be read as part and parcel of this Judgment. ZC/A-141/Sindh Appeal allowed.