' CH. SHAHID SAEED, J.--- Through this writ petition, the petitioner calls in question order dated 13-9- 2011 passed by learned Additional District Judge, Lahore who dismissed the revision petition of the petitioner and upheld the order dated 5-3-2011 passed learned Civil Judge, Lahore.
2. Precise facts of the case are that respondents Nos.3 and 4 filed a suit for declaration, specific performance and permanent injunction on 15-5-2006 against defendants Nos.1 to 3 mainly on the ground that Mst. Zeb-un-Nisa, the allottee/owner of the plot measuring 3 kanals located at 429- Ferozepur Road, Lahore had sold the same to them vide agreement to sell dated 2-4-1990 against consideration of Rs.2,000,000. On the other hand, the petitioner claims that he had purchased the same property from the said lady through registered sale deed dated 1-11-2005.
3. The summo nses were issued, however, due to non-deposit of process fee despite providing several opportunities to the plaintiffs, the suit was dismissed to the extent of defendants Nos. 1 to 3 on 7-10-2008, whereas the petitioner was defendant No.2 therein. Afterwards, due to non- prosecution, the suit was dismissed on 5-12-2008.
4. On 21-1-2009, the plaintiffs submitted application for restoration of their suit to its original number which application was allowed on 26-3-2009 and the suit was restored. On 26-1-2010, the plaintiffs filed written statement wherein they arrayed the L.Rs. Of Mst. Zeb-un-Nisa (defendant No.1) and also Sub-Registrar (defendant No.3) as defendants. The petitioner filed application under Order I, Rule 10, C.P.C. Praying that since suit against defendants No.1 to 3 had already been dismissed vide order dated 7-10-2008 prior to the order of dismissal for non-prosecution, therefore, names of L.R.s of defendant No.1 be deleted from the array of defendants. The learned trial court vide order dated 5-3-2011 dismissed the said application and held that the suit after restoration has taken a new birth and it has become alive against all the defendants as no specific order was announced as to what extent the suit had been restored. Feeling aggrieved, the petitioner filed a revision petition which was also dismissed by learned Additional District Judge, Lahore vide order dated 13-9-2011. Hence, this constitutional writ petition challenging both 'the said orders has been instituted.
5. Learned counsel for the petitioner chiefly argues that the suit against delendants Nos.1 to 3 was dismissed due to non-deposit of process fee vide order dated 7 10-2008 and no application for setting aside the said order was moved. Later on 5-12-2008, the suit was dismissed for want of prosecution, as such, after restoration, the suit will restore to its position when it was dismissed for non-prosecution as the application was moved for restoration of the suit to its original number only and no application for setting .Aside the earlier order of 7-10-2008 was ever moved by the plaintiffs. Learned counsel avers that both the learned courts below have failed to apply their judicious mind and erred in law while passing the impugned orders. He prays that this writ petition be allowed and the impugned orders be set aside.
6. On the other hand, learned counsel for the respondents, has vehemently opposed this writ petition and fully supported the impugned orders. Learned counsel contends that there are concurrent findings of law and fact against the petitioner, which are immune from interference by this Court unless a glaring illegality has been committed but the learned counsel for the petitioner has failed to point out any such illegality. He prays for dismissal of the writ petition in hand.
7. Arguments heard. Record perused.
8. Undeniably, the plaintiffs' suit was first dismissed to the extent of defendants Nos.1 to 3 vide order dated 7-10-2008 as the plaintiffs failed to deposit the- process fee for service of the defendants and then, it was 'dismissed for non-prosecution vide order dated 5-12-2008. The petitioner filed application for restoration of his suit to its original number which was allowed and the suit was accordingly restored vide order dated 26-3-2009. ,9. The only controversy between the parties is whether the suit is restored to the position when the suit was filed or to that when it was dismissed for non-prosecution. Both the learned courts below have held that the suit was restored to its initial stage as no order, whatsoever, regarding position where it will restore was made by the learned trial court while restoring the suit on 26-3-2009.
However, I am not convinced with the findings of learned courts below that the suit after restoration will restore to initial stage. Rather, I am of the considered view that it will restore to the position when it was dismissed for non-prosecution, i.e. 5-12-2008 as when the suit against defendants Nos.1 to 3 already stood dismissed on 7-10-2008, prior to dismissal of the suit for non-prosecution on 5-12-2008, how it would restore to its initial stage. In that case, what status of orders passed prior to dismissal for non-prosecution would be? I am of the considered view that the suit after dismissal in default will restore to its position where it was dismissed for non-prosecution and all the ancillary orders made prior to dismissal on 5-12-2008 will become alive and operative retrospectively, however, any orders made between the interregnum from dismissal of the suit to its restoration will, however, collapse. Reliance is placed on the ratio decidendi laid down in the cases Kailas Chandra Ray and others vs. Hridoy Chandra Das and others (AIR 1924 Calcutta 814) and Muhammad Saleh v. Muhamamd Shafi (1982 SCM R 33).
10. The only contention of learned counsel for the respondents that the concurrent findings are immune from interference by this Court does not hold force as there is plethora of judgments passed by the superior courts that the concurrent findings can be interfered with if these suffer from glaring illegality or irregularity..
11. For the reasons given herein above, this writ petition is allowed and the impugned orders are set aside. The result would be that the suit of the respondents-plaintiffs will be deemed to have been restored to the position of 5-12-2008 with all ancillary orders made before 5-12-2008 alive and operative.