1. ORDER AHMAD ALI M. SHAIKH. J. - Through this Appeal, the Appellants have impugned Order dated 15.12.2008 passed by the learned Single Judge in J.M. No. 24 of 2005 whereby he allowed the application under Order IX, Rule 9, CPC and restored the Judicial Misc. Application to its original stage, subject to payment of cost of Rs. 50,000/-.
2. The facts leading to this Appeal are that in 2005 the Respondent No. 1 had filed J.M. No. 24 of 2005 against the Appellants and other Respondents under Section 305 of the Companies Ordinance, 1984 praying therein for winding of the Company and appointment of Official Liquidator to take it in custody and to recover Rs. 3,36,47,845.00.
3. From the pleadings, it appears that on 21.9.2007 the above matter was dismissed for non- prosecution. Through CMA No. 969/07 the Respondent sought restoration of the said Judicial Misc.
4. Application but ultimately the said Restoration Application was also dismissed for nonprosecution on 15.2.2008 and finally the Respondent had moved another application for restoration of the Restoration Application.
5. After hearing the parties, the learned Company Judge was pleased to restore the above Judicial Misc. Application vide Order dated 15.12.2008, hence this High Court Appeal.
6. It is, inter alia, contended that the impugned order dated 15.12.2008 passed by the learned Single Judge is against the facts and law and as such not sustainable; it is pre-condition for the consideration for the restoration of the matter that party show and prove sufficient cause for his absence as well as absence of his advocate but that aspect was not considered by the learned Single Judge sufficient cause was not shown though there is no exact definition of 'sufficient cause' but it may include 'honest, just, fair or lawful cause' but the same was missing in the Restoration Application. It is further contended that though the learned Single Judge had agreed with the contentions of the Appellant side that Respondent No. 1 was not vigilant in pursuing the matter and his advocate also remained absent, even then he has allowed the Application by relying on the view of the Honourable Supreme Court which is not applicable in the case in hand; the learned Counsel further went on to say that the learned Single Judge did not take into consideration the relevant factor i.e. The conduct Of the party before the Court of Law in seeking equity. According to him, in the present case though finding with regard to the conduct of the party has been given against Respondent No. 1, but instead of that discretion has been exercised in his favour. He lastly contended that the impugned order cannot be maintained in any circumstance and same is liable to be struck down. In support of his contentions, he has relied upon the case of REX TALKIES (PVT.)
7. LTD. AND ANOTHER v. SAMIR OOSMAN AND 2 OTHERS (PLD 2007 Karachi 362).
8. On the other hand, learned Counsel for Respondent No. 1 defended the impugned order on the ground that same has been passed in accordance with law and in the line of the judgments passed by the Honourable Supreme Court.
9. We have heard the learned Counsel for the parties 1 and perused the impugned order with their able assistance.
10. It appears that the Learned Single Judge has followed the principle laid down by the Honourable Supreme Court in the case of PIRZADA NIAZ AHMED FARUQUI V. MUHAMMAD BUX (2004 SCMR 862) where under similar circumstances the Honourable Supreme Court, in order to ensure that the case is decided on merits and to do complete justice between the parties, granted the relief.
11. Similar relief was also extended in the case MEHAR TEXTILE MILLS V. INVESTMENT CORPORATION OF PAKISTAN (2005 SCMR 1328).
12. No doubt there is negligence on the part of the Respondent as well as his Counsel but it is well- settled principle of law that a dispute at a Court of Law should be allowed to be settled on merits rather the ends of justice be defeated. It may be observed that the Superior Courts in absence of special reasons to the contrary have always . Leaned in favour of substantial justice. The Courts do not sit as Disciplinary Bodies to punish for inept procedure when their right is clear and no misunderstanding, surprise or prejudice can occur to the other side. The duty of the Court is to do justice between the parties. The prescribed procedure and the technicalities should not come in the way of doing substantial justice. In the case of IMTIAZ AHMED V. GHULAM AU AND OTHERS (PLD 1963 S.C. 382). Justice A.R. CORNELUS, one of the members of a Full Bench of Honourable Supreme Court, while dealing with the effects of Technicalities, observed as under:- "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are, not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his."
13. Even in the case of REX TALKIES (supra) a Division Bench of this Court has observed that the law favours adjudication on merits rather than on Technicalities, thus as far as possible, keeping in view the facts and circumstances of each case this should be the approach of all Judicial Forums.
14. In view of above and. The dictum laid down by the Honourable Supreme Court in PIRZADA NIAZ AHMED FARUQUI'S case (supra), we are of the considered view that the impugned order passed by the learned Single Judge is in accordance with the law and the same is based on the principles laid down by the Honourable Supreme Court. We may further observe that through the impugned order neither the interest of the appellants have been taken away nor they have been prejudiced in any manner. The learned Single Judge, while passing the impugned order, has exercised his discretionary powers reasonably, justly and fairly.
15. For the foregoing reasons, we had dismissed the above Appeal in limine by our short order dated 21.01.2010.