C.M. No.1/C of 2005 C.M. No.2/C of 2005 ' C.M. No.1/C of 2005 is an application for restoration of revision petition, which was dismissed for non-prosecution on 28-10-2002; whereas C.M. No.2/C of 2005 is an application for condonation of delay for filing of belated application for restoration of main petition.
2. The learned counsel of the applicant/petitioner submits that the applicant/petitioner has filed revision petition originally through Ch. Muhammad Hassan, Advocate, which was admitted for regular hearing vide order dated 7-9-1999. But during the pendency of this revision petition, Ch. Muhammad Hassan, Advocate, original counsel of the applicant/ petitioner died in an accident on his way to Islamabad to appear before the Honourable Supreme Court, therefore, he could not appear in this case on the said date and could not inform the applicant/ petitioner. He further submits that the applicant/ petitioner came to know about dismissal of his revision petition only when respondents produced a copy of dismissal order dated 28-10-2002 before the lower Court in a case titled " Muhammad Ramzan and others v. Muhammad Sharif and others. He further submits that once revision petition is admitted for regular hearing, then this Court has to decide the same on merits. In support of his contention, he relied upon "Muhammad Sadiq v. Mst. Bashiran Bibi and others" PLD 2000 SC 820.
3. The learned counsel of the respondents submits that applicant/ petitioner has not mentioned specific date of knowledge in the contents of application; therefore, there is no sufficient ground to condone the delay for filing of belated application. In support of his contention, he relied upon "Abdul Ghafoor v. Kala" 2001 MLD 1489. He further submits that it is the duty of the applicant/petitioner to explain delay of each day, which the applicant/ petitioner did not explain as is evident from the contents of application filed by the applicant/petitioner, therefore, the applications are liable to be dismissed. In support of his contention, he relied upon "Mst. Faizun- Nisa Begum v. Additional Settlement Commissioner and Deputy Commissioner, Tharparkar and others" 1975 SCMR 344. He further submits that the compromise has been arrived at between the parties before the learned trial Court in a case titled " Muhammad Ramzan v. Muhammad Sharif and others" on 14-2-2005 and it was in the knowledge of the applicant/petitioner that his revision petition was dismissed for non-prosecution on 28-10-2002 and the applicant/petitioner has filed the aforesaid applications before this Court on 12-3-2005 without explanation of delay of each day.
He further submits that there is no provision in Civil Procedure Code for restoration of revision petition, which was dismissed for non-prosecution. In support of his contention, he relied upon the following judgments:- ' Allah Bachai v. Fida Hussain 2004 SCMR 615 ' Said Ali v. Safdar Ali 2004 SCMR 387.
' He further submits on the basis of aforesaid judgments of the Honourable Supreme Court that vested right by afflux of time has accrued to the respondents; therefore, both the applications are liable to be dismissed.
4. The learned counsel of the applicant/petitioner in rebuttal submits that the applicant/petitioner has mentioned in the contents of application that the applicant/petitioner came to know about the dismissal of revision petition for non-prosecution in the lower Court, which according to the learned counsel of the respondents, came in the knowledge of applicant/petitioner on 15-2-2004 and thereafter, the applicant/petitioner came to Lahore and tried to contract his original counsel, but he was informed that his original counsel was died. Therefore, he collected the papers and engaged another counsel to file the aforesaid applications.
5. I have given my anxious consideration to the contentions of learned counsel of the parties and perused the record.
6. The plea of learned counsel of the respondents is that the revision in default, cannot be restored in view of law laid down by Full Bench consisting of three Judges of the Honourable Supreme Court in "Jan Muhammad's case PLD 1981 SC 513. The aforesaid judgment of the Honourable Supreme Court is followed in the following judgments by different Benches of different High Courts:- "Muhammad Arbab and others v.. Jaffari Muhammad Hussain" 1983 CLC (Karachi) 335; "Farman Ali v. Muhammad Yousaf Ali" 1990 CLC (Lahore) 1936; "Umar Khan v. Nazim Raza and others" 1990 MLD (Karachi) 1062; "Fazal Hussain v. Muzaffar Sultana" PLD 1992 Lahore 250; "Musharaf Sultana v. Fazal Hussain and 9 others" 1992 CLC (Lahore) 1394; "Municipal Committee, Jehlum v. Maulvi Muhammad Shaft" 1971 SCMR 740; "Syed Iqbal Hussain v. Abdul Ghani PLD 1967 Lahore 633; "Babu v. Mst. Niaz Bibi" PLD 1982 Lahore 192.
' Considering the case-law as cited above, it is pertinent to mention here that specific provisions are made in the C.P.C. For dismissal in default of a suit and appeal as is envisaged in Order IX, rule 8 and Order XLI, rule 18 of C.P.C. And conesquently provision has also been made as is envisaged in Order IX, rule 9 and Order XLI, rule 19 of C.P.C., but there is no specific provision made in C.P.C. For dismissal of revision application for non-prosecution, but this power can be considered to be inherent in all Courts exercising powers of Civil Court and when such power has been exercised inherent jurisdiction to dismiss the revision application then the same Court will have inherent jurisdiction to restore the revision application, subject of course showing of sufficient cause.
7. The Honourable Supreme Court also observed by analogy while filing of certified copy be read under Order XLI(1) read with section 115 of C.P.C. With regard to filing of certified copy of document as per law laid down in "Riasat Ali v. Muhammad Jaffar Khan and 2 others" 1991 SCMR 496. It is settled principle of law that judgment of larger Bench of the Honourable Supreme Court is binding upon this Court. In arriving to this conclusion, I am also fortified by the following judgments:-- "Ch. Muhammad Aslam's case" 1997 SCMR 315; "Fazal Ahmad's case" 1997 SCMR 1368;.
"Basharat Ali's case" PLD 2004 Lahore 199; "Mumtaz Ali Khan's case" PLD 2001 SC 169.
It is admitted fact that the applicant/petitioner has filed revision petition through Ch. Muhammad Hassan, Advocate, who has died during the pendency of this revision petition, therefore, it is sufficient cause for condonation of delay as well as for restoration of revision petition, even otherwise, the Honourable Supreme Court in "Muhammad Sadiq's case" supra PLD 2000 SC 820 laid down principle that once revision petition is admitted for regular hearing, same cannot be dismissed ii5r non-prosecution and must be disposed of on merit. The aforesaid proposition of law is also supported by law laid down by Indian Supreme Court in "Hukumchand Amolikchand Longda and others v. Madhava Balaji Potdar and another" AIR 1983 SC (India) 540. By analogy the Order XXIII of C.P.C. Is also applicable in revision proceedings as per law laid down in " Muhammad Yousaf and others v. Mst. Zubaida Begum 1993 MLD 2138.
In view of what has been discussed above, the aforesaid applications are backed by affidavits and reasons recorded therein, the same arc allowed. Consequently, the revision petition is restored to its original number.
Petition restored.