AMIR HANI MUSLIM, J.--- Through this petition the petitioner has impugned order of the learned VI Additional District Judge, Hyderabad, respondent No. 3, dismissing the Civil Revision Application No. 65 of 2002, preferred by the petitioner against the order of V-Extra Joint Civil Judge and FCM, Hyderabad, respondent No. 4.
2. The material facts as pleaded in the petition are that on 1.10.2002 petitioner filed a suit for possession and mesne profit against Sadaruddin and Abdul Waheed, respondents Nos. 1 and 2 respectively, in the respect of respondent No. 4. The plaint was presented before the Nazir of the Court of respondent No. 4 on 1.10.2002 through a duly constituted Advocate. On presentation of the plaint, the Nazir has made the following endorsement:- 'Received today at 12.00 a.m. from Mr. Masood, Advocate on 1.10.2002.'
3. After presenting the plaint in the suit referred to hereinabove, the petitioner and his counsel left the Court office of the respondent No. 4 as the respondent No. 4 was holding Court and as per practice once the respondent No. 4 rose for the day the Nazir used to place files before the Presiding Officer in Chamber for appropriate Orders. The respondent No. 4, on the same day, passed the following order when he case file was placed before her by the Nazir:- 'Suit is presented through Munshi the plaintiff called absent, same be put up after checking and appearance of plaintiff in person.'
4. When the petitioner's counsel came to know of the orders of the respondent No. 4, reproduced hereinabove, he challenged the same before the respondent No. 3 through Civil Revision Application No. 65 of 2002. The respondent No. 3 after hearing passed an order dated 11.11.2002 dismissing the revision of the petitioner, which is also impugned in the present proceedings.
5. This. Court appointed Mr. Kazi Munawwar Ali, Advocate, as amicus curiae and also issued notices to the learned Additional Advocate General, Sindh, President of High Court Bar Association, Hyderabad and Mr. Abdul Aziz, Member, Sindh Bar Council.
6. We have heard Mr. Syed Masood Ali, learned counsel for the petitioner, Mr. Kazi Munawwar Ali, learned amicus curiae and Mr. Masood Noorani, learned Additional A.-G., Presiding of High Court Bar Association, Hyderabad and Member, Sindh Bar Council, were not present, hence we were not benefited by their arguments.
7. Since the point raised in the Petition was short, therefore, with the consent of the learned counsel we decided to admit this petition to regular hearing and disposed it of finally.
8. It has been argued by the learned counsel for the petitioner that the impugned order dated 1.10.2002 passed by the respondent No. 4 was without reasons. He submitted that the provisions of Rules 85 to 93-A of the 'Sindh Civil Courts Rules' do not authorize the subordinate Courts to order personal appearance of a party if the party was duly represented by a counsel. He further submitted that the order dated 1.10.2002 whereby the petitioner/plaintiff in the suit was directed to appear in person was, therefore, improper. He argued that at best the respondent No. 4 could have ordered appearance of the Counsel in the event if there was any ambiguity either in presentation of the plaint or otherwise but ordering personal appearance of the petitioner straightaway was uncalled for. He also submitted that the learned respondent No. 3 who dismissed the Civil Revision Application erred in affirming the order of the respondent No. 4.
9. Mr. Kazi Munawwar Ali, learned amicus curiae submitted that appearance of either party to the proceedings could be ordered by a Court if circumstances so enquire. He in this regard has submitted that provisions of Order 5, Rule 1, Order 4, Rule 1 and Order 5, Rule 3 of the CPC, deal with the powers of the Court in regard to presentation of the proceedings and or appearance of the Counsel on behalf of a party. He further relied upon the provisions of Rules 85 and 93-A of the Sindh Civil Courts Rules, which deal with the institution of proceedings before the Subordinate Courts. He urged that the power of Courts to direct appearance of a party is available but could only be exercised when there is some justifiable reasons. According to him, in the given circumstances, the respondent No. 4 had exercised the discretion directing the personal appearance of the Petitioner was not warranted by law.
10.Mr. Masood Noorani, the learned Additional A.-G., has contended that the Court has the power to direct appearance of a party and submitted that the petitioner and his counsel may appear before the respondent No. 4.
11.We have heard the learned counsel and examined the written comments filed by respondent No. 4 wherein it has been pleaded that under Order 5, Rule 3, CPC the Court can require appearance of a party. However, the respondent No. 4 in her comments has not given any specific reason for passing such an order.
12.The only question, which requires consideration, is as to whether a Civil Court is competent to direct personal appearance of a party at the stage of presentation of the plaint when the proceedings have been filed through an Advocate who too, appeared before the Nazir of the Court of respondent No. 4 and the fact of his appearance is reflected in the note of the Nazir. The respondent No. 4 after perusal of the endorsement of the Nazir has passed an order directing appearance of the petitioner/plaintiff without assigning any justifiable reason, which could warrant such direction. Additionally, what is strange was that the respondent No. 4 has noticed in the impugned order the presence of Munshi whereas in the comments no such fact has been mentioned by her. The contents of the comments are self-conflicting. The judicial officers in law are required to dispense justice softly and swiftly without inviting difficulties for the parties unless a direction of the nature was dispensable. There is no dispute in regard to powers of a Court to direct appearance of a party but the question is as to whether any occasion to exercise such powers was available to the respondent No. 4.
13.We have carefully examined the contents of the comments of the respondent No. 4 and we have not been persuaded by the contents of the comments that respondent No. 4 was justified in directing stage of presentation of pleadings. The judicial officers are expected to administer justice by adopting such procedure, which could bring comfort to the litigants. In the present proceedings the unreasoned order of the respondent No. 4 in which instead of hearing the counsel that, too, if there was a need of the nature, direction for personal appearance of the party without assigning reason, was inconceivable. Even in the comments of the respondent No. 4 no justification has been made in passing such an order except recording the provisions of Order 1 and 5 of the CPC. These provisions of Civil Procedure Code in no way help the respondent No. 4 in passing such an unwarranted order of the nature. Even the provisional Court completely lost sight of the issue raised before it and misdirected itself by affirming the order of the respondent No. 4.
14. For the aforesaid reasons, we allow the petition and both the orders passed by respondent No. 3 and respondent No. 4 are set-aside being without jurisdiction as there was no occasion for the respondent No. 4 to direct personal appearance of the petitioner. We further direct the District and Sessions Judge, Hyderabad to mark the case of the petitioner for trial in accordance with law to any other judicial officer other than the one who has passed the impugned order.