' On 8-2-1978, the petitioners or their predecessor-in-interest filed a suit for specific performance against the respondents. An ex parte decree was passed in the suit on 27-5-1980. The respondents filed an application for setting aside of the said ex parte decree which was allowed on 6-7-1989 and ex parte decree was set aside. They filed a revision which was dismissed by a learned Additional District Judge, Khanewal on 5-3-1990. While dismissing the revision petition learned Additional District Judge directed the parties to appear before the learned trial Court on .17-3-1990.
Examination of the order-sheet shows that on 20-12-1989, learned trial Court remitted the records to the Court of appeal and adjourned the case to 17-2-1990 in waiting for the orders. Thereafter next order was passed on the order-sheet on the same page on 24-4-1990 (page No,22 of the paper book). Presence of the learned counsel for the parties was marked. It was noted that the records have been returned back and that some of the parties (un-named) have died and the learned counsel for the petitioners wants to get some information. The case was adjourned to 10- 5-1990 for further proceedings. On this date, learned counsel for the petitioner stated that he has not been able to establish contact with his clients. Thereafter, the case was adjourned for filing of amended plaint on 17-5-1990. On this date it was noted that the amended plaint has not been fired and the case was adjourned subject to costs of Rs,100 of 9-6-1990. On this date learned counsel for the respondent was marked present. The case was called three times. It was noted that no one has turned up for the petitioners and the case was dismissed for non-prosecution. On 24-11-1990, the petitioners filed an application for restoration of the suit. It was stated that the petitioners did come to the Court on 17-3-1990 but the file had not been received and the petitioners were told that they will be informed when the file is received. They had been waiting for the notice but now when they sought information they were told that the suit was dismissed for non-prosecution on 9-6-1990. In reply it was contended that the application is barred by time and that the learned counsel for the petitioner had been appearing after remand. Issues were framed. Evidence of the parties was recorded. Learned trial Court dismissed the application on 28-11-1992. Learned Additional District Judge, Khanewal dismissed the first appeal on 23-1-1994.
2. Learned counsel for the petitioners contends that apart from the fact that the contents of the application found support from the records, the suit could not have been dismissed for non- prosecution on 9-6-1990 as it was not a date fixed for hearing and the order was without jurisdiction and consequently the application was competent under section 151, C.P.C. Within the period of three years. Learned counsel for the respondents, on the other hand, contends that the amended plaint was to be filed and it was a date of hearing. He reiterates the position taken by his clients that the learned counsel for the petitioners had been appearing after remand.
3. I have examined the records available with the file with the assistance of the learned counsel for the parties. I have already noted above that in the order-sheet of the case first order recorded after 20-12-1989 was on 24-2-1990. There is thus, some truth in the said contention that on 17-3-1990 the file had not been received in the Court. However, the record does show that the learned counsel for the parties were marked present on 24-4-1990, 10-5-1990 and 27-5-1990. On 10-5-1990, learned counsel for the petitioners was directed to file an amended plaint and the case was adjourned to 27-5-1990 and 8-6-1990 with costs of Rs,100. Now what needs to be seen in this case is as to whether the case was fixed for hearing on 8-6-1990. An examination of the records shows that it was not. Now as noted by me above, learned trial Court had observed that some parties have died and thereafter, it abruptly ordered filing of amended plaint. Needless to state that whether it is addition, substitution or transposition of parties under Order I, rule 10, C.P.C. Or impleadment of L.Rs, under Order XXII, rule 3 or 4, C.P.C. A Court has to pass an order applying a conscious mind and then to issue directions. In the present case, I find that the learned trial Court C and the learned Additional District Judge failed to note that the L.Rs, of the deceased plaintiffs i,e, the petitioner had already been brought on record during the course of revision that was earlier filed by the petitioners. Now it is Well-settled law that where L.Rs, are impleaded at any stage of the proceedings then there is no requirement at all of impleading them again in the main suit. This was so held by the Honourable Supreme Court of Pakistan in the case Meer Ghulam Abbas and others v. Hashim and others 1969 SCM R 257 and this dictum has been followed ever since amongst others by this Court. Reference may be made to the case Zakria Begum v. Aziz Ahmad and others 1986 CLC 2410(2) and Ch. Meraj Din v. Mst. Zohra Begum PLD 1981 Lah.
451.
4. It will thus, be seen that the learned trial Court and the learned Additional District Judge have proceeded in the matter without ever$ a glance on the record. Another aspect which is glaring on the face of record is that even if the learned counsel had appeared, he was having no instructions and he was not even aware that the L.RS. Already stood impleaded on record. Of course, the record does not show any application of mind by the learned trial Court to determine as to what is to be done in the suit. I have already noted above that in the first instance an ex parte decree was passed. It was set aside. The matter was challenged in revision and then the file had come back.
5. I do find that both the learned Courts below have acted with material irregularity in exercise of their respective jurisdiction. C.R. Is accordingly allowed. Both the impugned orders are set aside.
Application filed by the petitioners for restoration of the suit is allowed. Result would be that the suit shall be deemed to be pending before the learned Senior Civil Judge, Khanewal, where the parties shall appear on 19-4-2005. Records be remitted to the learned Senior Civil Judge, Khanewal. He shall commence proceedings from the stage, they were at the time the ex parte decree was passed, which has since been set aside.