1. ' GHULAM DASTAGIR A. SHAHANI, J.---This order will dispose of Civil Miscellaneous Appeal No, 50 of 2008 filed being dissatisfied with the order passed on 19-5-2008 by the Ist Additional District Judge, Karachi Central, by which he dismissed applications moved under Order XLI, Rule 19, C.P.C. And section 5 of the Limitation Act.
2. ' Facts of the case in brief are that, appellant claims to be owner of a Flat bearing No,A-03, situated in the building, known as S.S. Apartments, Block-h, North Nazimabad, Karachi. The respondent (Mst.
3. Kishawar Jamal) filed Civil Suit No, 453/2005 for specific performance of contract, declaration and cancellation of documents, on the basis of agreement of sale and suit was decreed on 2-5-2006 by the Court of VIth Senior Civil Judge, Karachi Central.
4. ' Being aggrieved and dissatisfied, Civil Appeal No,82 of 2006 was preferred with the Court of learned District Judge, Karachi Central, and on receiving by transfer same was admitted for regular hearing on 3-6-2006, by the Ist Additional District Judge, Karachi Central and notices were ordered to be issued for the respondents. Further facts as alleged are that appeal was filed through Dr. M.R.
5. Zia Rana but due to his death during pendency of the appeal, she engaged another counsel namely Mr. Farhat, who proceeded to Khairpur due to the death of his father and appellant remained under impression that her case was being attended by her counsel. However, matter adjourned on various dates, lastly on 15-9-2007, when no one was in attendance, matter was dismissed for non-prosecution. In fact dismissal of appeal came in knowledge of the appellant on 30-1-2008, as such application underOrder XLI, Rule 19, C.P.C. Was filed for re-admission of the matter on its original stage along with condonation application, but same was dismissed vide order, dated 19-5-2008 by the Ist Additional District Judge, Karachi Central, hence present appeal.
6. 'On last date of hearing Mr. Muhammad Mushtaq Qadir requested for time on the ground that he has been engaged by the respondent and some time is required to him for preparation of his brief and with consent matter was adjourned for 9-10-2008, but at the time of call Mr. Mushtaq Qadri learned counsel repeatedly called absent without intimation.
7. ' Heard Mr. Shehanshah Hussain learned counsel for the appellant, who states that appeal can be dismissed for default only under Order XLI Rule 11 sub-clause (2) or Rule 17-18, C.P.C. And when matter was already admitted for regular hearing, same was not to be dismissed for non- prosecution. According to him even matter was not fixed for hearing and at the most stay application was to be disposed of and not a main appeal. He further states that dismissal order, dated 19-5-2008 is without jurisdiction and nullity in the eye of law, as such question of limitation does not arise and pray for re-admission of the appeal with a request that matter may be remanded to the appellate Court for rewrite of judgment on merits by providing an opportunity of hearing to both the parties.
8. ' On perusal of record, it appears that on 3-6-2006 matter was admitted for a regular hearing, whereas, appeal has been dismissed for non-prosecution on 15-9-2007, as no one was in attendance on behalf of the appellant in Court at the time of call. The grounds urged by the appellant in her affidavit accompanying with application moved under Order XLI Rule 19, C.P.C.
9. Prima facie seems to be genuine and carrying weight, as at the first instance Dr. M.R. Zia Rana was engaged by her, who unfortunately died during pendency of the appeal. She engaged Mr. Farhat, who proceeded to Khairpur according to her, due to the death of his father without intimating her and she remained under impression that her counsel Mr. Farhat will appear and proceed with the matter, but appeal was dismissed for non-prosecution. So far nonappearance of the learned counsel, so also of the appellant at the time of call on a particular date and time seems to be not mala fide, as one of his counsel expired during pendency of appeal whereas, Mr. Farhat proceeded to Khairpur due to the death of his father, and under such a circumstance it was not possible for learned counsel for the appellant to intimate his clients including the appellant, and that be the reason that she remained absent on a particular date and time and matter dismissed for non- prosecution and she being house hold lady without knowledge and information that father of Mr. Farhat has expired and his counsel will not be available on a particular date and further that matter has been dismissed, all was not possible and was beyond her control.
10. ' In view of aforesaid facts, when appeal was admitted for a regular hearing, that was not to be dismissed for non-prosecution except in a special and appropriate cases so necessary, else matter was to be decided on merits. Furthermore matter was not fixed for hearing and at the most particular application was to be dismissed, as argued by the learned counsel for the appellant, as such dismissal of appeal for non-prosecution in such a way at such a stage was not legal and appropriate and appellate Court has not acted in accordance to law and such type of order cannot said to have been passed on merits, but on a technical ground, hence cannot sustain, in view of the decisions of Apex Courts that matters be decided on merits instead to decide the same on a technical ground. However, when order is void, illegal, without jurisdiction and nullity in the eye of law, the question of limitation does A not arise. Even otherwise, in a dismissal order particular time has not been disclosed, whether same was dismissed in the morning or in late hours and presumption can be taken that matter might have been dismissed in the morning and not in late hours, though dismissal orders are to be passed in late hours. However, even time barred appeal/application can be restored under section 151, C.P.C. (under inherent powers). Reliance is placed in a case of (1986 SCMR 362). As legal right of the appellant is involved and is a house hold lady she engaged Dr. M.R. Zia Rana who unfortunately died during pendency of appeal and again engaged Mr. Farhat, who proceeded to Khairpur due B to sudden death of his father, the request of the appellant seems to be genuine and she must be heard and matter be decided on merits instead to decide the same on a technical ground, by providing full opportunity to both the parties.
11. Reliance is placed in a case of Muhammad Amin and 4 others v. The Chief Administrator of Auqaf West Pakistan Lahore (1970 SCM R 537), Major Shaukat Ali Randhwa v. Mst. Zartaj Hamid and others (1985 CLC 3011) and Ghulam Muhammad v. Altaf Hussain and others (1981 SCM R 533) respectively, in which a matter was remanded for a fresh decision by observing that orders passed from time to time no doubt indicate that the appellant (Respondent) before Honourable Supreme Court was negligent, but as law leans towards disposal of cases on merits, it was held that further opportunity should have been granted to the appellant to produce his evidence both oral and documentary on payment of additional costs because costs have been considered to be panacea for all sores in litigation and that was the reason that by my short order, dated 9-10-2008, appeal was allowed with costs of Rs,5000 to be paid by the appellant which a period of one week with Nazir of this Court, for utilization towards the High Court Employees Welfare Fund and order passed on 19-5- 2008 by Ist. Additional District Judge, Karachi Central was set aside and remanded the matter for disposal afresh on merits after providing full opportunity to the parties within a period of six months from the date of the receipt of the order. These are the reasons for the same.