Suit dismissed for non-prosecution

2025 SCMR 2095 SUPREME-COURT Judicial Precedent

S. 52Punjab Pre-emption Act (IX of 1991), S. 13Pre-emption suitDispute over actual sale considerationSuit dismissed for non-prosecutionRestoration of suitAlienation of property during interregnumEffect and legalityLis pendensPrincipleApplicability

Alienation of suit property after dismissal of suit for non-prosecution and before its restoration falls within the sphere of lis pendens

Factual background of present case was that appellants / plaintiffs (pre-emptors) filed a suit for possession through pre-emption against respondent No. 5 (vendor) regarding the suit land claiming the sale price was Rs.200,000, while respondent No.5 asserted that it was Rs.250,000

Suit was dismissed for non-prosecution and was later on restored

After dismissal of suit and before its restoration, respondent No.5 (vendor) sold the property to respondents Nos. 2 to 4 (subsequent vendees)

During pendency of the suit, respondent No. 5 (vendor) made a statement before the trial court that the original vendor could be summoned to confirm the actual sale consideration and that whatever amount the vendor admitted to have received could be treated as the sale price for decreeing the suit

The only question before the Trial Court requiring determination was the price of the suit land and respondent No.5 had no objection if the original vendor was summoned for ascertaining the actual amount of sale, but the Trial Court did not accede to the request of the appellant and proceeded to frame the issues

Trial Court dismissed the said request but the revisional court accepted it, decreeing the suit

Respondents Nos. 2 to 4 (subsequent vendees) challenged the revisional court verdict before the High Court, whereby, the decree was set aside and the matter was remanded for decision on merits, prompting the present appeal by the preemptor concerning the applicability of the doctrine of lis pendens

Primary question warranting determination before the Supreme Court was as to "whether the Respondents Nos. 2 to 4, who purchased the suit property during the pendency of the pre-emption suit despite a stay order, were bound by the statement of their predecessor-in-interest under the rule of lis pendens, and whether the appellant (pre-emptor), who had already deposited the amount of Rs.250,000/- in compliance with that statement, could claim that the transaction was struck by lis pendens and was entitled to have the suit decreed?"

Held: So far as the argument that the property was purchased during the period when the suit was dismissed, therefore, the principle of lis pendens did not apply to the case of the subsequent buyers, the said argument had no force, because if a suit was dismissed and then restored, the restoration order related to back period and a transfer/sale after dismissal and before restoration was subjected to the principle of lis pendens embodied in section 52 of the Transfer of Property Act, 1882

However, in the present case, the petitioners purchased the disputed property through a mutation when the proceedings in the suit were in progress after its restoration after dismissal for non-prosecution

Respondents Nos. 2 to 4 had acquired the title to the suit property subject to the final outcome of the lis and as such were bound by the result of the suit stricto sensu in all respects, as their transferor i.e. respondent No.5 was bound

High Court erred in law while passing the impugned order, which suffered from material illegality, therefore, same could not be allowed to sustain further

Resultantly, the impugned order was set aside and appeal was allowed, in circumstances.

2025 SCMR 2092 SUPREME-COURT Judicial Precedent

S. 115Limitation Act (IX of 1908), S. 5Suit dismissed for non-prosecutionInability to pursue the case proceedings due to being behind bars/in jailBelated filing of restoration application along with condonation of delay applicationSufficient causeRevisional court, jurisdiction ofScopeSuit was restored by Trial Court exercising its discretionRevisional court as well as High Court held the restoration application to be time-barred

Question requiring determination before the Supreme Court was as to "Whether the revisional court exercising jurisdiction under section 115 C.P.C. could reverse the discretionary findings reached by the Trial Court in exercise of its lawful jurisdiction while condoning the delay in filing of application for restoration of suit?"

Held: In the impugned orders it was found that the restoration application was barred by time, whereas, it was revealed from perusal of the paper-book that the application for condonation of delay under section 5 of the Limitation Act, 1908 was available which escaped the attention of the revisional court

Supreme Court did not agree with the reasoning assigned by the revisional court which was appreciated by the High Court through the impugned order that such grounds as disclosed in the restoration application could have been considered had it been filed within thirty days of order

Had the application been filed within thirty days, the condonation application was not required

Condonation application was filed when statutory period for filing restoration application had lapsed

Such delay was then required to be explained in the condonation application which the petitioner did and the Trial Court was in consonance with the grounds mentioned therein when it accepted the applications both for restoration and condonation

The impugned orders of the High Court and that of the revisional court were set aside and the order of the Trial Court was restored

Petition was converted into an appeal and allowed, in circumstances.

2022 MLD 831 ISLAMABAD Judicial Precedent

S.12Civil Procedure Code (V of 1908), O. IX, R.9Constitution of Pakistan, Art.199Constitutional petitionSuit dismissed for non-prosecutionRestorationTime frameSufficient cause for non-appearanceDeterminationSuit for specific performance of agreement to sell filed by respondent / plaintiff was dismissed for non-prosecutionTwo applications for restoration were dismissed by Trial Court but on third application, the suit was restoredValidity

Within Civil Procedure Code, 1908, time frames are provided to regulate cycle of a dispute that enters adjudicatory process

If such time frames are not abided by, the cost inflicted on public interest is debilitating

Civil Procedure Code, 1908, confers penal powers on Court to enforce prescribed time lines to move along adjudication of suit in order to conclude proceedings within a reasonable period of time

Entire scheme is meant to ensure that justice is delivered according to law within time lines prescribed by law

Order of restoration of suit absolved respondent / plaintiff of his obligation to establish sufficient cause as required under O.IX, R.9, C.P.C.

Trial Court did not bring into consideration the question of whether or not respondent / plaintiff had sufficient cause for his non-appearance while allowing his application

Trial Court acted in excess of its jurisdiction under law

Trial Court was under obligation to apply test of sufficient cause and had documented its reasons as to why its conscience was satisfied that non-appearance of respondent / plaintiff before Trial Court on date fixed was excusable in accordance with law

High Court set aside order restoring the suit and remanded the matter to Trial Court for decision afresh on application

Constitutional petition was allowed accordingly.

2021 PLD 761 SUPREME-COURT Judicial Precedent

O. IX, R. 9(1)Non-appearance of plaintiff and his counsel on multiple dates of hearing before Trial CourtSuit dismissed for non-prosecutionApplication filed by plaintiff for restoration of suit'Sufficient cause' for non-appearanceScope

Term "sufficient cause" had not been defined in the Code of Civil Procedure, 1908 nor could a specific yardstick be put in place for determining what constituted "sufficient" cause and what did not; it always depended upon the facts and circumstances of each case, and it had to be left to the judicial conscience of the Court to make an informed assessment as to whether the cause disclosed by the plaintiff was a reason good enough to satisfy the Court that it was beyond the reasonable control of the party concerned to appear before the Court on the date fixed for hearing

Party seeking to claim benefit of O. IX, R. 9(1), C.P.C must establish "sufficient" cause, bona fides and due diligence.

2021 PLD 761 SUPREME-COURT Judicial Precedent

O. IX, R. 9(1)Non-appearance of plaintiffs and their counsel on multiple dates of hearing before Trial CourtSuit dismissed for non-prosecutionApplication filed by plaintiffs for restoration of suitNo 'sufficient cause' shown for non-appearanceCarelessness, negligence and lack of diligence on the part of the plaintiffs and their counsel

Suit of the plaintiffs was dismissed for non-prosecution and was conditionally restored on the basis of a conceding statement of the defendants

However, such restoration was conditional upon payment of costs which were admittedly never paid by the plaintiffs

Further, at no stage was any application moved seeking extension of time for payment of costs

Even if such lapse on part of the plaintiffs as well as the Trial Court, which failed to notice the non-fulfillment of the condition imposed in its order, was ignored, the lack of diligence on the part of the plaintiffs in pursing their suit was self-evident from the fact that the suit was dismissed for non-prosecution again, for the second time

Although the application for restoration of suit was filed within time but mere filing of a restoration application not sufficient

In the application for restoration of suit the cause for non-appearance of plaintiff and his counsel on date fixed for hearing was mentioned as some important business

Such reason was unspecific, vague and generalized which could not by any stretch of the language be termed as 'sufficient cause' to fulfill requirements of O. IX, R. 9, C.P.C.

Furthermore record showed that suit was filed in 2005, issues were framed in 2006 and for the next ten years not a single witness was produced by the plaintiffs notwithstanding the reasons for such delay which in any event did not furnish any justification for the litigation in question dragging on at a snail's pace

Such delay and lack of progress was largely attributable to the plaintiffs

Application for restoration of suit filed by the plaintiffs had been rightly rejected by the High Court

Petition for leave to appeal was dismissed and leave was refused.

2020 PLD 518 SUPREME-COURT Judicial Precedent

S. 133(1)Limitation Act (IX of 1908), First Sched. Art. 168

Tax Reference/Application filed before the High Court under S.133(1) of the Income Tax Ordinance, 2001 ('the Ordinance')

Dismissed for non-prosecution

Application for restoration of the Tax Reference/ Application, limitation for

Since Reference/Application under S.133(1) of the Ordinance was in effect an appeal, Art. 168 of the First Schedule of the Limitation Act, 1908 was fully applicable and provided 30 days as the period of limitation for readmission or restoration of an appeal dismissed for want of prosecution.

2019 YLR 209 ISLAMABAD Judicial Precedent

O. IX, Rr. 8 & 9Suit dismissed for non-prosecutionFresh suit, institution ofScope

Where a suit was wholly or partly dismissed under O. IX, R. 8, C.P.C. then plaintiff would be precluded from filing a fresh suit with regard to same cause of action.

2017 YLRN 410 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

O. IX, R. 8Limitation Act (IX of 1908), Arts. 181 & 163Suit dismissed for non-prosecutionRestoration of suitLimitationDate of hearingScope

Trial Court accepted the petition for restoration of suit but Appellate Court dismissed the same observing that petition was time-barred

High Court set aside the order of Appellate Court and restored the order of Trial Court

Validity

Date of dismissal of suit for non-prosecution was not the date of hearing

Dismissal of suit was unwarranted which was rightly restored by the Trial Court

Order passed by the Appellate Court was not consistent with statutory provision as well as principles of law

Appellate Court while passing the order had not applied the correct law and High Court had rightly exercised the writ jurisdiction and applied the correct law

Suit could be dismissed for non-appearance of plaintiff under O. IX, R. 8, C.P.C. if the date was fixed for hearing

If date was not fixed for hearing then neither suit could be dismissed nor ex-parte order could be passed

If any such order was passed then it would be deemed as without jurisdiction and nullity in the eye of law

If suit was dismissed for non-prosecution when the date was not fixed for hearing then limitation would be governed under Art. 181 and not 163 of Limitation Act, 1908

Appeal was dismissed in circumstances.

2017 CLC 752 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O. XLI, Rr.17 (1) & 19Limitation Act (IX of 1908), S.5, Arts.168 & 188AppealDismissed for non-prosecutionRestorationLimitationCondonation of delaySecond appeal filed by appellant was dismissed for non-prosecutionContention of appellant was that under Art.188 of Limitation Act, 1908, restoration could be sought within three yearsValidity

Contention of appellant was misconceived as time for readmission of appeal for non-prosecution was 30 days as provided under Art.168 of Limitation Act, 1908

In the present case, after about 14 months, application for restoration was filed and nothing had come on record if the court-fees amount was paid to advocate

Affidavit of counsel for the appellant showed that brothers and sisters of appellant were ready to pay court fee, which legally could not be allowed after a long period of about more than three years from the date of preferring appeal

For seeking condonation of delay sufficient cause was to be shown for default and each day's delay was to be explained before the court which had not been done

High Court declined to condone the delay in filing restoration application and consider application filed by appellant for payment of court-fee

Application was dismissed in circumstances.

2017 CLCN 129 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O. XLIII, R. 1, O. IX, Rr. 8, 9 & O. XVII, R. 3Suit dismissed for non-prosecutionApplication for restoration of suitEx parte proceedingsProcedureSuit was fixed for evidence of defendant but plaintiff did not appear and suit was dismissed for non-prosecutionValidityAppeal was competent under O. XLIII, R. 1(c), C.P.C. against an order passed under O. IX, R. 9, C.P.C.

Previous default, if any, was not to be taken into consideration while deciding an application under O. IX, R. 9, C.P.C.

Present suit was not to be dismissed for non-prosecution but proper course was to proceed the matter under O. XVII, R. 3, C.P.C.

Impugned order passed by the Trial Court was without jurisdiction and nullity in law

Suit could have been decided on merits after recording evidence of defendant

If suit was not fixed for hearing but was fixed only for hearing of some interlocutory application or for any other miscellaneous proceedings then Court had no jurisdiction to dismiss the same for non-prosecution

No ex parte order should be passed in early hour of the day but matter should be kept aside and again be called in second part of the day and ex parte order could be passed at the end of the day

Court was to note the exact time of passing ex-pate order in the diary/order sheet

Impugned order was set aside and Trial Court was directed to decide the matter within two months

Appeal was allowed in circumstances.

2013 CLD 1053 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O. IX, R.9Limitation Act (IX of 1908), S.5 & Art.163Suit dismissed for non-prosecutionRestorationLimitationDelay, condonation ofScope

Plaintiff would be obliged to show sufficient cause for his previous non-appearance and explain delay of each and every day

Principles.

2013 CLD 1053 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O. IX, R.9Suit dismissed for non-prosecution

Plaintiff's plea was that after withdrawal of Vakalatnama by his earlier counsel, no notice was issued to him; and that court was required to issue him notice for each and every date

Validity

Court had given specific date and reasonable time to plaintiff either to engage another counsel or pursue his earlier counsel to proceed with the case

Duty of plaintiff was to pursue his case vigilantly and engage another counsel and not to act recklessly

Court in such circumstances was not bound to send notice to plaintiff for each and every date

Such application was dismissed in circumstances.

2013 MLD 782 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O.IX, R.9Suit dismissed for non-prosecution

Plaintiff's plea was that after withdrawal of Vakalatnama by his earlier counsel, no notice was issued to him; and that court was required to issue him notice for each and every date

Validity

Court had given specific date and reasonable time to plaintiff either to engage another counsel or pusue his earlier counsel to proceed with the case

Duty of plaintiff was to puruse his case vigilantly and engage another counsel and not to act recklessly

Court in such circumstances was not bound to send notice to plaintiff for each and every date

Such application was dismissed in circumstances.

2013 MLD 782 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O.IX, R.9Limitation Act (IX of 1908), S.5 & Art. 163Suit dismissed for non-prosecutionRestorationLimitationDelay, condonation ofScope

Plaintiff would be obliged to show sufficient cause for his previous non-appearance and explain delay of each and every day

Principles.

2013 PLD 27 HIGH-COURT-AZAD-KASHMIR Judicial Precedent

O. IX, R.8Suit dismissed for non-prosecutionApplication for restoration ofValidity

Record showed that relevant date had been fixed by Reader of court on a previous date, when Presiding Judge was on leave

Neither presence of plaintiff was required on relevant date nor same was a date of hearing

Suit was restored in circumstances.