Dismissal of suit

As per record, the case had been adjourning for recording evidence of the appellant till 18.11.2024 for more than 1½ year after framing of issues

Appellant availed sufficient opportunities for producing and recording of her evidence but she remained unable to do the same

Trial Court granted ample opportunities and even absolute last and final opportunity was granted to her with the warning i.e. if evidence would not be produced her right to produce evidence would be closed and before passing impugned order cost was imposed in presence of the appellant with the said warning

During that span, statement of even a single witness could not be recorded

No other option was left with the Trial Court except to invoke the penal jurisdiction of O.XVII, R.3, C.P.C.

From the bare perusal of said facts and referred provisions of law it became crystal clear that the trial Court ordered a specific warning and imposition of cost therefore once the final opportunity was granted along with a clear warning, the Court must enforce its order strictly and without exception

Lis of the present matter remained pending before the Trial Court for almost more than three years and the other party kept on facing the agony of the trial for such a long period

Appellant could not produce her evidence before the Trial Court despite availing reasonable opportunities

Lis was prolonged on one pretext or the other despite clear orders of the Trial Court

Cases must be decided promptly, otherwise it causes heavy backlogs of controversies between the parties, that amounts to abuse of legal system and a hurdle in fair and timely disposal of cases

In such circumstances, case of the appellant squarely fell within the mischief of provision of O.XVII, R.3, C.P.C. and appellant's suit was rightly dismissed by the Trial Court after affording reasonable and justified opportunities to produce her evidence

Appeal being devoid of any force and substance was dismissed in limine.

More than sufficient opportunities were granted to petitioner / plaintiff for producing his evidence and despite putting him under caution he did not bother to avail the same

Such indolent person(s) could not be allowed to play with the process of Court and linger on the matter on one pretext or the other, that too, without any plausible and valid reason

Petitioner was granted with absolutely last and final opportunities for production of his evidence with clear cut warnings but the petitioner did not pay any heed to such orders and direction of Trial Court

Such act of petitioner / plaintiff showed his adamant attitude towards the orders of Trial Court

Supreme Court declined to interfere in the orders passed by all Courts below

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

Appellants / plaintiffs were aggrieved of dismissal of their suit by Trial Court for non-deposit of balance sale consideration when they had been directed by Trial Court to deposit the same in Court

Plea raised by appellants / plaintiffs was that they had offered to submit surety bond instead of balance sale consideration

Validity

Onus at very initial stage from institution of suit, is on vendee to satisfy test of equity; firstly, that vendor actually refused to accept sale consideration; secondly, the vendee who is seeking performance of agreement to sell has the ability and was ready and willing at all material times to perform his/her part of agreement

It is essential and imperative that vendee is bound to deposit balance sale consideration in Court

Vendee cannot even seek enforcement of reciprocal obligation of vendor unless he is able to demonstrate not only his/her willingness but also his/her capability to fulfill his/her obligation under the contract

Application of appellants / plaintiffs to substitute direction for deposit of balance sale consideration with surety bond proved to be lethal

Direction to appellants / plaintiffs to deposit balance sale consideration was in consonance with law laid down by Superior Courts

High Court declined to interfere in judgment and decree passed by Trial Court against appellants / plaintiffs as the same did not suffer from any jurisdictional defect or procedural impropriety nor was it tainted with any illegality

Appeal was dismissed, in circumstances.

On 13th of February, 2014, the second round of litigation was brought by the plaintiff to recover earnest money, to which the cause of action arose after the dismissal of the first suit for specific performance, and has reached the Supreme Court in appeal 18 years after the agreement

In total, these two rounds of litigation, starting with the same agreement, had almost completed 19 years of litigation

Supreme Court observed that based on empirical study it is advisable to suggest that suitable amendments to the Specific Relief Act, 1877, be made so as to do away with such litigations and reduce the burden on the courts and on parties; that proposed amendments should provide for a provision by which any person suing for the specific performance of a contract for the transfer of immovable property, in appropriate cases, may ask for (i) possession or partition and separate possession, of the property in addition to such performance; or (ii) any other relief to which he is entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused.

Applicants/plaintiffs were aggrieved of dismissal of their suits by High Court while allowing revision petition against dismissal of application under S.12(2) C.P.C.

Validity

High Court dismissed the suits on findings that respondent lady was legal heir and consent decree could not be passed in her absence

Principle of audi alteram partem, entrenched in due process doctrine, was offended to the extent of applicants / plaintiffs who were not heard while deciding Civil Revision

Applicants / plaintiffs were deprived of an opportunity to defend against findings of connivance with brothers of respondent lady and their right of decision on merits in appeals, if consent was defective, had not been protected

High Court modified its judgment passed earlier as the Court did not have jurisdiction to dismiss suits after allowing Civil Revisions against consolidated order for dismissal of applications under S.12(2), C.P.C.

High Court remanded the matter to Lower Appellate Court to decide appeal afresh which were deemed to be pending and application under S.12(2) C.P.C. were allowed

Application was allowed accordingly.

Slipshod order bereft of just/legal reasoning passed under R.3 of O.XVII, Civil Procedure Code, dismissing the suit without considering the material on record, would be beyond the scope of powers specified under the said Rule.

Court might deal with the matter in controversy so far as with regard to the right and interests of the parties actually before it

Trial Court was not to have dismissed the suit of plaintiff due to mis-joinder or non-joinder or impleading name of wrong plaintiff

Impugned orders passed by the Courts below were without jurisdiction which were set aside

Matter was remanded to the Trial Court with the direction to transpose the parties in view of O. I, R. 10, C.P.C.

Constitutional petition was allowed, in circumstances.

Plaintiff sought specific performance of agreement whereby he paid amounts to defendants on behalf of different persons for securing government jobs for them

Single Judge of High Court dismissed the plaint as the same was not maintainable

Validity

Such agreement / Iqrarnam executed between the parties was hit by S.23 of Contract Act, 1872, as well as S.21 of Specific Relief Act, 1877, which made it void and illegal and could not be enforced

Single Judge of High Court had rightly dealt with every aspect of the matter and had rightly concluded in order in question that suit was not maintainable

Division Bench of High Court declined to interfere in the judgment passed by Single Judge of High Court, as the suit filed by plaintiff was barred by law

High Court appeal was dismissed in circumstances.

Trial Court while announcing the judgment and decree did not direct the appellant to make up the deficiency in Court fee

Appellant who had affixed the Court fee of Rs.15000/- with the plaint would not be expected to delay or demur in making up the deficiency of Rs.130/-

Fact that the appellant having been informed by the Reader of the Trial Court made up the deficiency on the same date, further proved that he was not directed to make up the deficiency at the time of announcement of the judgment

Assuming apellant was directed to make up the deficiency at the time of announcing the judgment, his failure to make up the deficiency of such a paltry sum could not deprive him of his substantive right because the Court Fees Act, 1870 being a fiscal statute had been enacted to collect revenue for State; it had not been enacted to arm a litigant with a weapon of technicality against his opponent

Neither the Court of law nor a litigant could use said law as a noose to strangulate a right which otherwise stood established

Decree granted to the appellant could still be executed in proportion to the amount of the Court fee actually paid.

Respondent/defendant contended that as the plaintiff had withdrawn the deposited Zar-i-shufa, his suit stood legally dismissed

Validity

Record showed that the pre-emption money/sale price was deposited by the plaintiff and said amount had already been withdrawn by the plaintiff

Section 24(3) of Khyber Pakhtunkhwa Pre-emption Act, 1987 provided that where the plaintiff had withdrawn the sum deposited the suit would be dismissed

Petitioner/plaintiff had admitted that he had withdrawn his deposited amount of 1/3rd sale price of the property, therefore the suit was liable for dismissal

Revision petition was dismissed accordingly.

Mere dismissal of suit for recovery of disputed amount against plaintiff does not confer any right to sue defendant for damages on basis of malicious prosecution

Prosecution of civil action can only provide a cause for damages for malicious prosecution to opposite side, if same is based on malice of complainant and that too when it is without any reasonable and probable cause.

Revision was dismissed in circumstances.

Purchasers of suit property were impleaded during pendency of suit but no process fee was deposited and suit was dismissed to their extent

Application for restoration of suit was filed which was accepted by the Trial Court but Appellate Court dismissed the same being time-barred

Validity

Plaintiffs were required to deposit the process fee well before the date fixed by the Trial Court

Suit could be dismissed where summons had not been served upon the defendant due to failure of plaintiff to pay court-fee or postal charges for such service

Such power of court was discretionary and court was not bound to dismiss the suit for non-deposit of process fee

Court could recall the order and could set the dismissal aside on sufficient cause

Existence of sufficient cause was sine qua non for exercise of such power

Application for restoration of suit was barred by four years

Application for restoration of suit might be admitted after the period of limitation if there was sufficient cause for not filing same within the prescribed period of 30 days

Plaintiffs were bound to satisfy the court that they were restrained by force of circumstances beyond their control to move application for restoration of suit within prescribed period of limitation

Defendants were impleaded as parties to the suit on the application of plaintiffs

Plaintiffs could not claim ignorance with regard to contents of order sheet

No sufficient cause was made out for recalling order for dismissal of suit due to non-deposit of process fee

Application for restoration of suit was liable to be dismissed

Constitutional petition was dismissed in circumstances.

Whenever court can help plaintiff, it should not dismiss the suit for non-joinder.

In case of dismissal further suit was barred, whereas in case of rejection, there was no bar to further suit on separate cause of action

Defendant filed application of rejection of plaint but the court had dismissed the suit

Dismissal of suit was not permissible under law

Impugned order was modified to the extent of dismissal of suit

High Court rejected the suit under O.VII, R. 11, C.P.C.

Appellate Court, in the present case, had passed the judgment and decree with the condition of dismissal of suit, in case of non-payment of the decretal amount within a period of one month

Contention of the petitioner was that as a huge amount was involved; time of one month granted by the Appellate Court for deposit of the amount was insufficient and had sought relief of payment of amount through bearable instalments and for extension in time

Validity

Points raised by the petitioner had no water, as there was no enactment for extension of time

Arrangement of huge amount would not be a valid ground for extension of time

Revision petition was partially allowed with a direction to deposit the decretal amount within a period of fifteen days and in case of failure of petitioner to make payment of the said amount within the extended time of fifteen days, the revision petition shall stand dismissed.

Despite many opportunities, plaintiffs did not produce their evidence and finally when case was transferred to another Court, plaintiffs failed to appear, resultantly the suit was dismissed under O.XVII, R.2, C.P.C.

Order passed by Trial Court was maintained by Lower Appellate Court

Validity

After appearance of one of the plaintiffs before Trial Court, after transfer of suit, there remained no requirement of issuance of Court motion notices to plaintiffs, who were fully conscious about the date of hearing

Provision of O.XVII, R.2, C.P.C. was applicable upon failure of party to appear on adjourned date of hearing, no matter at whose instance the adjournment might have been, except the adjourned date fixed by Reader and not by the Court, in such circumstances provision of O.XVII, R.5, C.P.C. was applicable

Plaintiffs failed to make there case on ground of any material irregularity or exercise of jurisdiction not vested in Courts below or failure to exercise jurisdiction vested in it

High Court declined to interfere in the orders passed by both the Courts below as the same were legal and had been passed in lawful exercise of their jurisdiction and did not suffer from any infirmity either in law or equity

Revision was dismissed in circumstances.

Plaintiffs had been provided ample opportunities and repeated last chance for production of evidence, but they had failed to produce the same

Evidence of plaintiff was struck off and the suit was dismissed

Validity

Court could not compel the plaintiffs to have produced their evidence rather it was their duty to have produced the same in order to substantiate their claim

When the court realized that the plaintiffs were not interested in producing their evidence, then it was left with no option but to strike off their evidence

Order of trial Court was unexception-able

Revision petition was dismissed.

Plaintiffs were not only negligent in producing their evidence but they did not care about the last chances provided and warnings given to them

Order passed by the learned Trial Court, closing the evidence of the plaintiff was unexceptionable

Revision petition was dismissed.

Application under O.XLI, R.27, C.P.C. by pre-emptor contending that his father and mother were owners in suit Khata, who died before suit sale, thus, he became owner therein

Dismissal of such application and appeal by Appellate Court

Validity

Name of pre-emptor's father was mentioned in Jamabandi for suit Khata

Record did not show whether pre-emptor's father was alive or dead; whether he died prior to sale or after sale

Copy of such application was not placed on record to show as to what was the actual case of pre-emptor seeking permission to lead additional evidence

Findings of courts below regarding superior right of pre-emption could not be interfered with in such circumstances

High Court dismissed revision petition.