Application for restoration of suit

2023 CLC 963 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Art.181Application for restoration of suitLimitation

Question of limitation in respect of application seeking restoration of suit is only relevant, if dismissal itself is proper

In the present case the order of dismissed in default was null and void, the appropriate Art. 181, of the First Schedule to the Limitation Act, 1908, and in this view of matter, the application for re-admission of suit could not have been treated time barred

Nothing wrong was committed on the part of petitioners that their suit could be dismissed for default, but for a below definitely committed material irregularity

Above circumstances the impugned concurrent order being coram non judice/ultra vires, besides suffering from jurisdictional defect neither can be protected nor perpetuated

Consequently petition is allowed, order impugned herein were set aside and application for restoration of main suit succeeds resulting in its re-admission

The parties are directed to appeared before court of competent jurisdiction for further proceedings.

2020 CLC 1318 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

O. IX, R. 3Suit dismissed in defaultApplication for restoration of suitLimitation"Sufficient cause"Suit was fixed for final arguments but no one appeared on behalf of plaintiffsTrial Court dismissed the suit for non-prosecutionPlaintiffs moved application for restoration of suit

Trial Court dismissed the application for restoration of suit being time barred but Appellate Court restored the same and High Court set aside the order of Appellate Court

Validity

Suit was fixed for final arguments after recording evidence of the parties

Trial Court should have decided the case on the basis of available material on record

Dismissal of suit in default after closing of evidence was not justified

Application for restoration of suit could be filed within three years, in circumstances

Present application was not time barred

When order of the Court was illegal and had prejudiced the case of a party then it was a "sufficient cause" for restoration of suit dismissed in default

Order passed by the High Court was set aside and that of Appellate Court was restored

Supreme Court observed that restoration of suit would be subject to payment of cost to be paid in trial Court

Appeal was allowed, accordingly.

2020 CLC 1652 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

O.IX, Rr.8 & 9Specific Relief Act (I of 1877), S.12Suit for specific performanceSuit was dismissed for non-prosecutionApplication for restoration of suit"Sufficient cause"Scope

Application for restoration of suit dismissed in default was dismissed by the Trial Court but Appellate Court accepted the same

Validity

Earlier suit was dismissed for want of prosecution but same was restored on the basis of conceding statement of defendant subject to payment of costs

Plaintiff had not paid said costs and even no application for extension of time for payment of the same had been moved

Non-deposit of costs would mean that suit was never restored

Application for restoration of suit was lacking any sufficient cause in the present case

Applicant had moved present application on the basis of general and vague assertions wherein no reason for his absence or his counsel had been mentioned

Application was not supported by an affidavit of the counsel

Applicant for seeking indulgence of the Court had to demonstrate "sufficient cause' for his non-appearance

Suit was to be decided on merits instead of knocking out the parties on the basis of technicalities but whenever a suit was dismissed in default then plaintiff should mention a cause for such lapse

Provisions of O.IX, R.9, C.P.C. could not be dispensed with merely on the ground that suit was to be decided on merits

Court had to keep the scale of justice equal and provisions of O. IX, R.9, C.P.C. could not be used for the advantage of one party and disadvantage of the other

Parties should be vigilant while prosecuting their cause

Trial Court had rightly applied the law to the subject and application for restoration of suit was dismissed through a well-reasoned order

Impugned order passed by the Appellate Court was set aside and that of Trial Court was restored

Application for restoration of suit was dismissed, in circumstances

Revision was allowed accordingly.

2018 CLCN 124 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

S. 148Suit for declaration and permanent injunctionApplication for restoration of suitPayment of costsExtension of timeScope

Suit was dismissed for non-prosecution and application for restoration of the same was accepted on 06-10-2012 subject to payment of costs within one week and matter was fixed for 01-11-2012

Plaintiffs moved application for extension of time for depositing the costs

Trial Court dismissed the application with observations that it could neither review its order nor sit as appellate or revisional Court on its own order

Appellate Court and High Court concurred with the findings of Trial Court

Validity

Trial Court had heard the arguments earlier and order was subsequently announced and suit was fixed on 1-11-2012

Plaintiffs without failure appeared on the said date and filed application for extension of time for depositing the costs and sufficiently explained the reasons for the application

Said aspect had not been considered by the Trial Court

Trial Court did not become functus officio in the matter

Present matter was not of review of the order nor sitting of the Trial Court as appellate or revision Court on its own order rather it was matter of exercise of powers vested under S. 148, C.P.C. to enlarge time fixed or granted by it

Court was to adjudicate matter on merits rather on technical grounds

Impugned judgments/orders were recalled by the Supreme Court and application for depositing the costs was accepted

Plaintiffs should deposit the costs within two weeks

Appeal was accepted accordingly.

2017 YLRN 340 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

O.VII, R.2, O. IX, R. 8 & O. XVII, R. 3Constitution of Pakistan, Art.199Constitutional petitionSuit for recovery of moneyDismissal of suit for non-prosecution/non-appearanceApplication for restoration of suitDeterminationDismissal of suit after court timingLegalityFraming of issuesRequirement

Plaintiff filed suit for recovery of outstanding sui gas consumption bill, which was dismissed by Trial Court for non-appearance of plaintiff

Plaintiff filed application with affidavit for restoration of suit on ground that his counsel was busy in High Court and Board of Revenue and his clerk had requested Reader of court to mark his attendance

Trial Court dismissed the application holding that absence of petitioner and his counsel was wilful and to avoid application under O. XVII, R. 3, C.P.C.

Revisional court upheld said order of dismissal

Contention raised by plaintiff was that restoration application could only be decided after recording of evidence

Validity

Subject-matter of suit involved recovery of public money

Court, before dismissing the suit, called it for hearing after court time was over and no one was present on behalf of plaintiff

Parties were bound to appear in court only during court time and not after closure of courts

Impugned order passed after court time was over, had no legal value

Wrong date of dismissal of suit was mentioned in restoration application, which plaintiff alleged to have resulted unintentionally due to slip of pen, which was question of fact ascertainable only after recording evidence

All questions involved pertaining to restoration application were questions of fact and the same could be resolved only after recording evidence

Trial Court wrongly assumed that plaintiff's absence was motivated by his intention not to produce evidence

Counsel's negligence could be proved after recording of evidence

Courts below erred in law while dismissing restoration application summarily without recording evidence

Trial Court was bound to frame issues as facts mentioned in restoration application were complicated ones

Impugned orders were set aside and case was remanded to Trial Court for decision on restoration application after recording of evidence

Constitutional petition was allowed.