Restoration of suit

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.

2023 MLD 541 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 151 & O. XXIII, R. 1Restoration of suit

Suit for declaration was instituted by the petitioners claiming that they were owners of the agricultural land on ground of inheritance; that registered sale-deed in favour of respondent/defendant was fictitious, forged, fraudulent, illegal; and that mutation sanctioned on basis of the said deed was also illegal

Petitioners made statement in the Trial Court that since duplicate of lost Part Sarkar had been allowed, so, there was no need for the present suit; and that and in case of emergence of the need, the suit would be filed again

Trial Court, on basis of such statement, dismissed the suit as withdrawn

Petitioners filed application under S. 151 of C.P.C., asserting that some other property was also the part of the claim; that their suit dismissed as withdrawn be restored; and that regarding remaining claim, the decision should be made upon merit

Said application was concurrently dismissed

Held, that necessary requirement was that notice be given to other party as to see whether the application of withdrawal of suit would fall within the domain of R. 1 of the O. XXIII, C.P.C.

Merely recording of statement of plaintiff allowing withdrawal of suit with permission to file fresh suit on the basis of same cause of action on payment of cost was not sufficient

No application was filed by the petitioner for withdrawal of the suit

Order sheet annexed with the petition reflected that no person from the defendant side was present on that date of recording statement

Respondent had joined the proceedings of the suit, filed his written statement and was present on all the previous dates

Neither the Court issued any notice to the respondent, nor mentioned regarding his presence in the order sheet

Permission for filing fresh suit could not be given under such circumstances

Petitioner did not claim that the statement was made due to some mistake or because of some coercion or any other technical reason

Application of S. 151, C.P.C. was alien to the proposition of petitioners' case

Constitutional petition was dismissed accordingly.

2022 CLD 522 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 9, 19 & 22Suit for recovery of financeExecution proceedingsRestoration of suitAppellant/Bank filed suit against respondent/defendant which suit was decreed with consent of both the partiesDuring execution proceedings, appellant/Bank sought restoration of suit for its decision on meritsValidity

Appellant/Bank itself did not perform its legal obligation as per settlement deed during proceedings of recovery suit before Banking Court

Neither appellant/Bank made request for sine die adjournment of suit at relevant time nor filed fresh suit on account of default in payment of installments of agreed amount by respondent/defendant

Rather appellant/Bank happily received settled amount during execution proceedings

Executing Court right turned down application of appellant/Bank for revival of original suit as Executing Court could not modify decree and go beyond the same

High Court declined to interfere in the order passed by Executing Court as the same did not suffer from any illegality, misreading or non-reading of record

Appeal was dismissed, in circumstances.

2022 CLC 953 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O.IX, R.9Restoration of suitSufficient causeGeneral policy of law was to adjudicate on merits and dismissal in default should serve as an exception

Litigant must not be denied the justice by Court unless there be insuparable legal hurdles in its way to dispense justice

In matter of restoration, generous consideration should weigh with the court and every possible attempt should be made to allow the parties opportunity of producing evidence and seeking decision on merits.

2021 MLD 1158 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O.XVII, R.3Restoration of suitFailure to produce evidence

Suit filed by plaintiff/respondent was dismissed on his failure to produce evidence despite seeking several opportunities

Trial Court on application filed by plaintiff/respondent restored the suit and Lower Appellate Court declined to interfere in the order of restoration

Validity

When suit was at a preliminary stage and there was not enough material on record for a decision forthwith, Trial Court could not have dismissed the suit under O.XVII, R.3, C.P.C.

Valuable right of plaintiff/respondent was involved in the suit and the same could not be allowed to be defeated in law on mere technical point

Court was to avoid technicalities in deciding dispute between parties and was to adhere to merits of the case

High Court declined to interfere in the matter as both the Courts below did not commit any material irregularity or illegality

Constitutional petition was dismissed in circumstances.

2019 PLD 106 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

Ss. 42 & 54Civil Procedure Code (V of 1908), O.IX, R. 8 & O.XVII, R. 3Limitation Act (IX of 1908), Arts. 163 & 181Restoration of suitLimitationSuit dismissed for non-appearanceFinal argumentsSuit filed by plaintiffs was dismissed for non-prosecution when it was fixed for final argumentsValidityCase was fixed for final arguments and entire evidence of parties was recorded and case was ripe for judgment

When Trial Court itself fixed case for hearing then it could have taken action under O.XVII, R.3, C.P.C. and should not have dismissed suit under O. IX, R. 8, C.P.C.

Dismissal of suit for non-appearance at such stage was wholly not warranted and entire labour and expense could not be allowed to go to waste

High Court observed that only proper course in such circumstances was to fix another date for hearing final arguments or decide suit on merits on basis of available evidence produced by both the parties without hearing arguments

High Court set aside order passed by Trial Court and Lower Appellate Court and restored suit filed by plaintiffs

High Court remanded suit to Trial Court for decision afresh

Revision was allowed accordingly.

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 SCMR 466 SUPREME-COURT Judicial Precedent

S. 151 & O.VI, R.19Constitution of Pakistan, Art.185(3)Restoration of suitNon-filing of form of address

Leave to appeal was granted by Supreme Court to consider questions that whether a simple petition under S.151 of the C.P.C. against the dismissal of the suit which resulted in a decree after the dismissal of the suit in default for appearance was maintainable and competent; that as to how the respondents/plaintiffs conducted themselves throughout the proceedings in pursuing their remedy, whether they were vigilant or otherwise; that whether the petition filed for restoration in question was within the period of limitation because no date of getting knowledge of the dismissal of their petition for default in appearance had been mentioned in application for restoration; that whether the process of the Court keeping in view the ordinary course of events and presumption attached therewith could be held to have been duly served on the respondents/plaintiffs about the date fixed for hearing in the main petition and that whether non-filing of form of address in terms of O.VI, R.19 of the C.P.C. had adverse consequences on the respondents/plaintiffs

Supreme Court, however, observed that it would be a futile exercise in case the appeal was allowed, thus the proceedings before that Trial Court were suspended.

2017 MLD 1 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 5Civil Procedure Code (V of 1908), O. IX, R. 9 & S. 151Restoration of suitLimitationCondonation of delayProof of absenceAct of counsel

Suit filed by plaintiff was dismissed for non-prosecution on 11-01-2011 whereas application for restoration was filed on 8-06-2011

Plaintiff sought condonation of delay on the ground that he remained under medical treatment for about six months

Validity

No medical record was filed by plaintiff along with his application therefore explanation/justification given by him for filing application after inordinate delay of about five months was not acceptable

Plaintiff was unable to give any explanation for absence of his counsel on the date when matter was called by the Court and suit was dismissed in default

Single Judge of High Court had rightly held that parties were bound by the acts and omissions of their counsel and in case of negligence on the part of counsel, parties could not claim that they were not to be held responsible

On account of dismissal of suit, valuable rights had accrued in favour of defendants which could not be taken away unless justifiable, strong or convincing cause was shown to the Court

Division Bench of High Court declined to interfere in the order passed by Single Judge dismissing the suit for non-prosecution

Appeal was dismissed in circumstances.