GHULAM SARWAR KORAI, J. --- This is an application under Order XLI, Rule 19, CPC read with Section 151, CPC for recalling the order dated 13.5.2009 and readmit the civil revision on its original position.
Another application under Section 5 of the Limitation Act for condonation of delay in filing the application u/O. XLI, Rule 19, CPC read with Section 151, CPC was filed on 24.11.2009.
1. Facts of the case are that civil revision application was dismissed on 13.5.2009 for the reasons that petitioner and his counsel called absent without any intimation, though the date and time was given.
2. Heard Mr. Mukesh Kumar, learned counsel for the applicant and Syed Tasawar Hussain Rizvi, counsel for the respondent.
3. Learned counsel for the applicant contended that case was fixed on 4.5.2009 and due to illness of the counsel for the applicant, same was adjourned to 12.5.2009 for which date neither applicant was in the knowledge nor his counsel therefore applicant and his counsel called absent and matter was dismissed for non-prosecution. He further contended that as soon as he came to know about this position, he immediately filed this application on 24.11.2009 with personal affidavit of Abdul Shahid Khan son of the petitioner as during this time petitioner was expired. He further contended that matter was fixed on 13.5.2009 and cause list of that that date was not distributed, therefore, applicant's counsel could not timely acquired knowledge about fixation of the above matter on 13.5.2Q09. He further contended that after one week summer vacation was started and in the light of judgment passed by Hon'ble Supreme Court on 31.7.2009, there was less number of Hon'ble Judges in Sindh High Court and therefore son of the applicant and his counsel were under the bona fide impression that the matter was not being fixed in Court on the afore-mentioned reasons. He also contended that applicant being old lady was seriously ill and was under treatment and she expired on 12.7.2009 at Liaquat National Hospital, Karachi. Under these circumstances absence of the applicant and his counsel was neither deliberate nor intentional, therefore, he prays for restoration of the civil revision application on the original position as it was on 12.5.2009. Lastly he contended that it will be in the interest of justice to decide the matter on merits rather than on technicalities. He relied upon the case-law of Rawalpindi Vs. Raja Muhammad Sarwar Khan (1968 SCMR 817), Mrs. Roshan D. Minwalla Vs. Karachi Development Authority (PLJ 1978 Karachi 55), Government of Pakistan Vs. Presiding Officer, Labour Court No. 6, Sukkur (PLD 1978 Karachi 940), Muhammad Javed Vs. Anwar Ali (2000 CLC 680), Jinnah Sports Club (Regd.) through General Secretary Vs. Pakistan Cricket Board through Chairman and 5 others (2000 CLC 1790), Abdul Basir Zahid and another Vs. Modaraba Ali Tijarah and another (2000 MLD 2067) and Jan Muhammad Vs. Bashir Ahmed and others (2002 MLD 1321).
4. Syed Tasawar Hussain Rizvi, learned counsel for the respondent vehemently opposed this application on the ground that prior to this civil revision application was dismissed for non- prosecution but the same was restored vide order dated 25.3.2009 subject to payment of cost of Rs. 10,000/- thereafter this matter was fixed on 4.5.2009 but was adjourned on request of Mansoorul Haq Ansari, Advocate of the applicant on the ground that he is not feeling well. On that day case was adjourned for 12.5.2009 at specific time at 11.30 a.m. While same was listed on the next day viz. 13.5.2009. On 13.5.2009 neither the applicant nor his counsel were present. He lastly contended that possession of the property is already with the respondent even prior to filing of civil revision. He also contended that restoration application is barred by time and is liable to be dismissed.
5. I have also perused the file.
6. Admittedly, this civil revision application was restored vide order dated 25.3.2009 subject to payment of cost of Rs. 10,000/- and case was adjourned to 4.5.2009 but on the request of the counsel for the applicant case was adjourned to 12.5.2009 at fixed time 11.30 but on that day due to some reasons work of all Courts remained suspended and the case was listed on 13.5.2009. On 13.5.2009 on the call neither the applicant nor her counsel was present therefore case 'was dismissed for non-prosecution. Since for 13.5.2009 there was no notice of the civil revision to the applicant or her counsel and this restoration application was filed by the counsel for the applicant with supporting affidavit of Abdul Shahid Khan son of the applicant as applicant was being old lady and later on she expired on 12.7.2009 in Liaquat National Hospital, Karachi, therefore, I am of the view that the absence of the applicant and her counsel on 13.5.2009 was neither deliberate nor intentional and the appearing circumstances application for restoration of civil revision is allowed by the Hon'ble Supreme Court as well as by High Court in the case titled by the counsel for the applicant.
7. Under these circumstances, this application for condonation of delay and application for restoration of civil revision are allowed and same is restored to its original position as it was on 12.5.2009.
Restoration .