1. ' SHAHID ANWAR BAJWA, J.--- Civil Suit No.61 of 2004 was filed by present respondent No.1 (hereinafter called the plaintiff) in 2005 for Specific Performance, Mandatory and Permanent Injunction. Defence No.1 in the original Court is present respondent No.2 and the present applicant was defendant No.3. It was stated in the plaint that defendant No.2, Rashid Ali purchased Plot No.A- 133, Sector T, Sub-Sector I, Gulshane-e-Maymar from defendant No.3, the present applicant. The present applicant was alleged to have told the plaintiff that he was attorney of the said Rashid Ali and then agreed to sale of the said Id property to the plaintiff. Consequently plaintiff moved an application before the present respondent No.2 for transfer of the suit property in his name but the present respondent No.2 raised objection on the grounds i.e. Seller and purchaser must appear in person. Plaintiff alleged that he approached defendant for completion of requisite formalities but defendant parried on one account or the other.Consequently plaintiff filed the suit with the following prayers:--- "(a) Specific performance of the contact to direct the defendants Nos.2 and 3 to perform his part as per sale agreement dated 5-7-2001 to execute sale deed/mutation/sufficient instruments of Plot No.A-133, Sector T, Sub-Sector-I, Gulshane-Maymar, measuring 240 sq.Yds in favour of the plaintiff in respect of the suit property and also other part of the contract. OR ' Alternate to pass judgment and decree at the present market value price ofthe suit property in favour of the plaintiff against the defendants for the date of the suit till its utilization.
(b) Alternatively to direct the Nazir of this honourable Court to execute the sale-deed or sufficient instruments of sub-lease of the suit property in favour of the plaintiff before the defendant No.1 and perform the specific part of the contract on behalf of the defendants Nos.2 and 3 including the execution of sufficient instruments in favour of the plaintiff.
(c) Permanent injunction, restraining the defendants, their agents, servants, executants, administrators, legal heirs and any other person or person(s) acting on their behalf from creating third party interest encumbering, creating any charge and lien, transferring and dispossessing in any manner of whatsoever of the suit property accept in due course of suit.
(d) Cost of the suit.
(e) Any other relief(s) which this honourable Court may deem fit and proper under the circumstances of the case."
2. ' The Senior Civil Judge vide Judgment dated 01-2-2006 and decree dated 6-2-2006 decreed the suit. Being aggrieved by the Judgment and decree Civil Appeal bearing No.63 of 2006 was filed.
3. ' Appeal was adjourned from date to date. On 25-8-2006 appeal was dismissed for non- prosecution. Application under Order XLI, rule 19 read with section 15.1, C.P.C. For re- admission/restoration of the appeal was filed. It is stated in the application that in the early morning of 25-8-2006 Advocate suffered high fever due to which he could neither appear before the Court nor informed the appellant nor could send an application for adjournment to the Court.
4. This application for restoration of application for restoration of appeal was dismissed on 3-2-2007.
5. On 3-2-2007 application came up for first time in the morning and was adjourned to 11-00 a.m. For hearing. At 11-00 a.m. It was dismissed for non-prosecution. At 1-00 p.m. Application for restoration of application under Order XLI, rule 19, C.P.C. Was filed. It was stated in the application that on 3-2- 2007 matter was fixed for service of application under Order XLI, rule 19, C.P.C. And therefore it could not be dismissed for non-appearance of the appellant's Advocate. It was further stated that Advocate for the appellant was present in the earlier hours and his presence was marked in the cause list. It is further stated that in any case the application for restoration had been filed on the same date. This application was dismissed by Appellate Court vide order dated 2-11-2007. Being aggrieved by the order, this revision application has been filed.
6. ' Learned counsel for applicant made the following submissions:---
(1) That the matter on 19-1-2007 was adjourned to 3-2-2007 for service upon the present respondents in respect of application under Order XLI, rule 19, C.P.C.
(2) That on 3-2-2007 hearing of application could not have taken place. This revision application was dismissed vide order dated 24-9-2008, an application for restoration of revision application was filed and was decided vide order dated 22-11-2008. In the order restoring the application, the High Court observed that the matter had been fixed for order and not for hearing and on this ground application for restoration was allowed. Learned counsel relied upon Ahmed Nawaz and 4 others v. Abdul Khalique and 13 others 2002 M LD 1783 and Ghulam Fareed v. Shahid-ud-Din Toghalaq, PLD 2008 Kar.
7. 536.
8. ' Learned counsel for the respondent made the following submissions:---
(1) Since application under Order XLI, rule 19, C.P.C, had been dismissed it is appealable order under Order XLIII, rule 1(t), C.P.C. And therefore, revision is not maintainable.
(2) That since one application for restoration had been dismissed, no second application for restoration could be filed and the matter-had become res judicate. He relied upon Faqir Alam and 10 others v. Ajab Khan and 15 others, 1986 CLC 1320.
(3) That there were three Advocates in whose favour Vakalatama had been executed, at least one of them should have been present.
(4) That for service means for hearing and when matter was called at 11-00 a.m. No one was present for the present applicant. He relied upon Zahid Ahmad v. Deputy Director Adjudication and 2 others PLD 2006 Kar. 252, Zaheeruddin v. Hashmatullah 1986 CLC 2609, Sindh Sugar Corporation Limited v. Messrs Maqbool Associates, Karachi, 2008 SCM R 47, Muhammad Ashfaq v. Agricultural Development Bank of Pakistan, 2000 CLC 1760, Syed Junaid Akhtar and others v. Managing Director/Chairman, PLD 2008 SC 130, Nabi Bakhsh and others v. Muhammad Aslam and 7 others, 1988 M LD 1830.
9. ' Advocate for respondent No.2 submitted that the matter had been dismissed earlier by the Court three times. He further submitted that no Medical Certificate was enclosed with the application under Order XLI, rule 19, C.P.C.
10. ' C.M.A No.3526 of 2009 was filed by one Muhammad Saqib, who claimed that he has purchased property in question from respondent No 1 and therefore he is a necessary party. With the consent of the counsel, this application was heard along with main revision application. Leaned counsel for intervener stated that in view of provision contained in Order XLIII, rule 1(t), C.P.C. Revision is not competent.
11. ' Learned counsel for applicant while exercising his right of reply submitted that order suffered from the basic illegality because property was situated outside the territorial jurisdiction of the Court, which decided the matter and therefore Court was coram non judice. He submitted that revision is maintainable because section 115, C.P.C. Includes the cases where Court exercises power which is not vested in it by law.
12. ' The application for restoration of application for rehearing of appeal was made on the same day when application for restoration of application for rehearing of appeal was dismissed i.e. On 03-2- 2007. Application reads as under:--- ' It is respectfully prayed that this Honourable Court may kindly be pleased to restore the application under Order XLI, rule 19, read with section 151, C.P.C. For re-admission/restoration of appeal as the said matter was fixed today on 3-2-2007 for service but the application under Order XLI, 'rule 19 is wrongly be dismiss in no appearance of appellant's Advocate as the Advocate was present early in the morning and mark his presence on cause list but the application under Order XLI, Rule 19 read with section 151, C.P.C. For re-admission/ restoration of appeal has wrongly been dismissed as that was not fixed today for hearing."
13. ' I have considered submissions made by the learned counsel and have also gone through the record as well as case-law cited by the learned counsel.
14. ' I will first deal with objection regarding maintainability of the revision petition. Contention of the learned counsel for the respondent as well that of the intervener is that the Order passed by a Court by which order application for restoration of application for re-hearing the appeal was dismissed is, according to the learned counsel, appealable under rule 1(t) of Order XLIII. Said rule reads ad under:--- "(1) Appeals for orders.--- An appeal shall lie from the following orders under the provisions of section 104; namely
(t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal."
15. ' A perusal of rule indicates that it covers two situations;
(a) refusal under Order XLI of Rule 49, C.P.C. To re-admit an appeal; or
(b) refusal under rule 21 of Order XLI, C.P.C. To rehear the appeal. Rule 19 of Order XLI provides as under:--- "19. Re-admission of appeal dismissed for default.--- (1) Where an appeal is dismissed under R.11, sub-rule (2), or rule 17 or rule 18, the appellant may apply to the Appellate Court for the readmission of the appeal; and where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit."
16. ' Rule 21 of Order XLI C.P.C. Provides as under: "21 Re-hearing on application of respondent against whom ex parte decree made.--- (1) Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the appellate Court to re-hear the appeal; and, if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him.
(2) The provisions of section 5 of the Limitation Act, 1908 (IX of 1908) shall apply to application under sub-rule W."
17. ' Obviously rule 19 has no applicability because rule 19 is a rule which deals with application for re- admitting an appeal. Rule 21 has no applicability because very opening word of the rule say that when appeal is heard ex parte and judgment is pronounced against the respondent: In this case appeal was not heard ex parte. What has been done is that application for restoration of application for re-admitting the appeal has been dismissed. Therefore, rule 1(t) of Order XLIII, C.P.C.
18. Are not available to the present applicant and consequently this revision application is held to be maintainable.
19. ' I will next take up application under Order I, rule 10, C.P.C.. (C.M.A. No.3526 of 2009). In this C.M.A intervener has stated that he purchased property in question believing respondent No.1 and after approaching the respondent No.2 and enquiring about documents of the property. He, however, stated in this application that late he came to know about pendency of appeal/dispute regarding the subject property. Therefore, he is necessary party in the matter. Under Order I, rule 10 C.P.C. An intervener can be impleaded as a party only when either it is a necessary party or it is a proper party. Necessary party is the one, who E ought to have been joined and in hose absence no effective adjudication can take place or decree passed. A proper party is the party whose presence is necessary before the Court in order to completely and effectually adjudicate upon and settle all questions involved in the suit. A subsequent purchaser who purchased the property during pendency of dispute between seller and buyer of the same property is neither necessary party nor proper party. Therefore, application under Order I, rule 10, C.P.C. Is dismissed. In any case the only objection raised by the intervener is regarding maintainability of the revision application which objection I have over ruled above.
20. ' Since I have held that revision application is maintainable I need not advert to the objection raised by the learned counsel for the application that since suit property was situated out side the territorial jurisdiction of trial Court, the order of the trial Court was coram non judice. I am afraid, I cannot agree to this objection in any case for the reasons stated in section 21 of the C.P.C., which requires that no objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court at first instance at the earliest possible opportunity and not in all cases where the issues are settled, on or before such settlement and unless there has been consequent failure of justice. No such objection appears to have been taken in the written statement or even before the issues were framed. Therefore, argument is without force.
21. ' Coming to the crux question: that on 3-2-2007 application for restoration of application for re- admission of appeal was fixed for service and therefore whether it could not have been heard and decided.
22. ' Learned counsel firstly relied upon Ahmad Nawaz's case. This is on the question of territorial jurisdiction and therefore is of no assistance to the applicant. Secondly learned counsel relied upon Ghulam Fareed's case. Again this case is on the issue of territorial jurisdiction and does not help case of the applicant, Faqir Alam's case decided by Supreme Court of Azad Jammu and Kashmir is of relevance in this regard. The relevant observation is at page 1325, which reads as under:--- "In the instant case, however, the question is as to whether the dismissal of the suit on 14-5-1973 can be regarded to be one falling under Order IX, rule 8. As has been already stated, the aforesaid date was fixed for the appearance of the plaintiff and the notice to the plaintiff for the said date had also not been returned after service. Thus, the date fixed for the appearance of the party cannot be said to be a date of 'hearing' within the meaning of Order IX, rule 8. The provisions of Order IX, rule 8 would be attracted only if the suit is fixed for hearing and not otherwise. If a dismissal is ordered on a date not fixed for hearing the order of dismissal of the suit would not fall under Order IX, rule 8 and, therefore, such an order would be without jurisdiction."
23. ' On the other hand learned counsel for the respondent relied upon Zahid Ahmad's case, wherein it was held that negligence on the part of the advocate has binding effect on his client and if a party engages the advocate who was lacking in sense of responsibility to the Court it was the party who should suffer and not the other side. In Zaheeruddin's case, application for restoration of appeal was dismissed because counsel failed to appear and represent his client. It was held that non- appearance was due to negligence and no sufficient cause for non-appearance had been made out and therefore appeal was dismissed. In Sindh Sugar Corporation Limited's case on 14-3-2006 application in which prayer for re-admission for the appeal was made was dismissed by High Court. Application for re-admission of appeal was filed on 26-1-2006 i.e. After more than 30 days and prayer for condonation of delay was made. The application was dismissed by the Honourable Supreme Court. In Muhammad Ashraf's case, application for re-admission of appeal was filed seventy-four days after dismissal of appeal for non-prosecution. There was no application for condonation of delay. Consequently application for restoration of appeal was dismissed. In Syed Akhtar's case application for re-admission of appeal was dismissed for non-prosecution. In Nabi Buksh's case it was held that refusal to re-admit appeal would be an appealable order under Order XLIII, C.P.C. All these cases are clearly distinguishable.
24. ' In the present case diary of the Court reveals that when on 19-1=2007 it was adjourned to 3-2- 2007 it was adjourned for service. Therefore, all that Court could have done on 3-2-2007 was to hold whether service has taken place or not. It first adjourned the matter to 11-00 a.m. Earlier in the morning both the counsel were present. At 11-15 a.m. It was dismissed for non-prosecution and on the same day at 1-00 p.m. An application for restoration of application was filed. Therefore in my opinion order of the appellate Court suffers from an infirmity. On 8-2-2007 it could have held service good when both the counsel were present and then adjourn the matter to a date for hearing. However, if both counsel were present there was nothing to preclude Court to hear both parties with their consent and thereafter decide the matter. The circumstances did not warrant dismissal of application. Consequently order dated 2-11-2007 passed by appellate Court is set aside and the matter is remanded to the appellate Court to first decide application under Order XLI, rule 19, C.P.C. Filed by the present applicant and thereafter in the light of this such decision proceed in accordance with law. Parties are left to bear their own costs.