' ABDUL RASOOL MEMON, J.---The applicant has impugned the order dated 10-5-2011, passed by the learned 1st Additional District Judge, Karachi, East in C.M.A. No,25 of 2010 and thereby appeal of respondents Nos.1 and 2 was allowed against the order of IVth Senior Civil Judge Karachi East whereby their application under Order IX, Rule 9, C.P.C. Was dismissed.
2. The facts of the case are that the respondents Nos.1 and 2 have filed a suit for recovery of Rs,20,00,000 under provisions of "Fatal Accident Act, 1855", against the applicant and respondent No,3 in the High Court of Sindh and due to amendment in law/pecuniary jurisdiction the suit was transferred to the learned District Judge Karachi, East wherefrom it was marked to the Court of Senior Civil Judge, Karachi for disposal according to law.
3. The suit was fixed for evidence on 20-8-2008 in the Court of IVth Senior Civil Judge, Karachi, East, where none of the parties appeared and the learned Senior Civil Judge dismissed the suit vide order dated 20-8-2008, reproduced as under:-- "Case called, plaintiffs and their advocate are called absent, the defendant No,2 and their advocate is also called absent, the suit against the defendant No,1 is already dismissed, it is 1:30 p.m. The case is repeatedly called since morning but the plaintiff and their advocate as well as witness of the plaintiff who is to be cross examined by the advocate for defendant No,2, are called absent without any intimation to this court. From the perusal of case file it appears that the case is pending since 19-3-2007 for cross of the witness of the plaintiff but the witness of the plaintiff is not in attendance of the court and even on many dates the plaintiff and their advocate as well as advocate for defendant are remained absent so also today none of the parties is in attendance of the court which shows lack interest of the patties for further proceeding of the present suit, accordingly present suit is dismissed in non prosecution, with no order as to cost."
4. The respondent No,1 filed an application under Order IX, Rule 9, C.P.C. Read with section 151, C.P.C.
And the learned trial Court vide order dated 24-3-2010, dismissed the said application, which was assailed in C.M.A. No,25 of 2010 and the same was allowed with the following observation:-- "No doubt the plaintiff was given sufficient time for adducing evidence but in spite of that he failed to record his evidence, ultimately the suit was dismissed for non-prosecution, but in spite of that it is the basic requirement of the law that the cases are to be decided on merits and not on technical grounds. Therefore, without going into the controversy that, whether the suit was dismissed under Order IX, Rule 3 or under Order IX Rule 8, C.P.C., the impugned order is set aside.
The matter is remanded back to the trial Court to allow an opportunity to the plaintiff side to adduce their evidence and if the plaintiff side failed to get recorded their evidence within 30 days of receipt of this Order, the trial Court may pass appropriate orders in accordance with law.
Keeping in view the seniority of the matter, the learned trial Court is directed to record the evidence of both the parties and decide the matter on merits within shortest possible time. A costs of Rs,5000 is also imposed upon the appellant side for their earlier negligence and wastage of time, which is to be paid to the respondent side."
5. The applicant has assailed the said order in this Civil Revision Application.
6. It is pertinent to mention that the respondents have been served with the notice issued in this revision, but none of them has appeared, therefore, the arguments of the learned counsel for the applicant were heard.
7. Learned counsel for the applicant has argued that the suit was dismissed under Order IX, Rule 3, C.P.C. And not under Order IX, Rule 8, C.P.C., therefore, the application under Order IX, Rule 9, C.P.C.
Was not tenable and was correctly dismissed by the trial Court and against the order passed on application under Order IX, Rule 3, C.P.C., no civil miscellaneous appeal lies, therefore, the impugned order is against the law and is not tenable. In support of his contention, learned counsel for the applicant has placed reliance on the cases of Zulfiqar ALI v. Lal Din (1974 SCMR 162), Sea Breeze Ltd. v. Padma Ramesh (2012 MLD 39), Muhammad Nawaz v. Barkat Ali (PLD 2004 Lahore 21) and Arshad Mahmood v. Pak. Kashmir Maches Factory (1993 CLC 378).
8. The main emphasis of the learned counsel for the applicant is that this is an order under Order IX, Rule 4, C.P.C. And no appeal is provided in terms of Order 43, Rule 1, C.P.C. Against an order passed under Order IX, Rules 2 and 3, C.P.C. I have consulted with the record. The order dated 20-8-2008, reveals that the matter was fixed for evidence of the witness of the plaintiff who was to be cross- examined by the advocate for the defendant and on that day both the parties were called absent, therefore, the suit was dismissed. In such a situation, the suit was dismissed under the provision of Order XVII, Rule 2, C.P.C., thus when the order on account of. Absence of plaintiff resulting in dismissal of suit for want of prosecution, was passed in the manner described under Rule 4 of Order IX, C.P.C. Or otherwise as provided under Rule 2 of Order XVII, C.P.C. It was open to revision.
Moreover, the order dated 20-8-2008 does not contain reference to any provision of A law as to whole dismissal of the suit under Order IX, or Order XVII, C.P.C. It reveals that none of the parties appeared when the suit was called on for hearing, as such it was dismissed, thus confining to the substance of the impugned order, suffice it to say that it is covered by provisions of Order IX, Rule 3, C.P.C. In such a situation, the remedy to seek restoration of suit by an application was available to the plaintiff. The order of dismissal of the application for restoration was, therefore, open to revision and not to an appeal, however, in such a situation, in a case of Mst. Noor Jehan v. Mst Roshen Jehan and 6 others 1994 SCMR 2265, the Hon'ble Supreme Court while dealing with the subject has held as under:-- "(5) We are convinced that although the order dated 3-4-1991 of the trial court was not an appealable order, yet under section 115(2), C.P.C. The District Judge had revisional power to deal with it so it will be deemed the appeal was actually heard and decided as a Revision. In this view of the matter order dated 26-10-1991 of the District Judge could be treated as a revisional order precluding further interference by the High Court under section 115(4), C.P.C. And as such impugned order/judgment is without jurisdiction authority.
(6) As far the alternate argument of the learned counsel, the learned District Judge had the legal authority to interfere with the order dated 3-4-1991 as a revisional Court, therefore, it was/is not possible to declare/hold that the order dated 26-10-1991 passed by him was without lawful authority and of no legal effect. The case-law cited by the learned counsel for the respondent is quite distinguishable."
9. In view of the dicta laid down in the aforesaid case-law, the impugned order passed by the learned 1st Additional District Judge Karachi, East, who had the legal authority to interfere with the order of dismissal dated 20-8-2008, as a revisional Court, therefore, it is not possible to declare/hold that the order passed by him is without lawful authority and of no legal effect, therefore, in the circumstances, I am of the opinion that the conclusion drawn by the learned Ist Additional District Judge Karachi, East by the impugned order that basic requirement of law is that the cases are to be decided on merits and not on technical ground and thereby remanding the case to the trial Court is according to law and does not require any interference of this Court in revisional jurisdictional. I, therefore, hereby, while maintaining the impugned order, dismiss the revision application and remand the case back to the trial Court for recording the evidence of the parties.
' Looking to the age of the case, the trial Court is directed to conclude the trial of the case within a period of 90 days from the receipt of this order.