' The petitioners through the instant revision petition under Section 115, CPC has questions the judgment/order dated 19/04/2012 of the learned Additional District Judge-VI, Peshawar whereby he dismissed their appeal and thus upheld the judgment/order dated 20/12/2010 of the learned Civil Judge-XVIII, Peshawar rejecting the application of the petitioners for restoration of the suit dismissed in default on 09/04/2008.
2. This case has a long drawn-out and chequered history. It is, therefore, necessary to give in some detail, a narration of the relevant facts necessary for adjudication of this petition. On 06/06/192 the petitioners instituted a suit for declaration and permanent injunction against the respondents which was contested only by official Defendants No, 4 and 5 by submitting their written statements.
Later on the petitioners with the permission of the Court filed amended plaint wherein Gul Muhammad and Shah Jehan were also impleaded as defendants. Issues were framed and there after all the defendants absented themselves and thus placed ex-parte and after recording exparte evidence of the petitioners, the learned Civil Judge-IV, Peshawar vide his judgment and decree dated 24/10/2002 decreed the suit exparte in favour of the petitioners against the defendants. There after on 28i11/2002 Shah Jehan Respondent No, 14 herein (Defendant No, 7 in the suit) submitted an application for setting aside the ex-parte decree dated 24/10/2002 which was contested by the petitioners but the same was accepted by the learned Civil Judge, Peshawar vide order dated 10/05/2004 and the ex-parte decree dated 24/10/2002 was set aside. This order was challenged by the petitioners by filing revision petition before the learned Additional District Judge- X, Peshawar who vide his judgment/order dated 20/09/2005 dismissed the same. There after the trial Court fixed the case for submission of written statement of the defendants but they did not submit the same and their right of defence was struck of under Order VIII Rule 10, CPC and passed a decree in favour of the petitioners vide judgment and decree dated 27/05/2006 of the learned Civil Judge-VII, Peshawar. Shah Jehan Respondent No, 14 preferred an appeal against the aforesaid judgment and decree before the learned District Judge, Peshawar which was accepted, judgment and decree of the trial Court was set aside and the case was remanded back to the trial Court with the direction to proceed in accordance with law after affording opportunity of hearing to the parties vide judgment and decree dated 07/06/2007 and the parties were directed to appear before the trial Court on 09/06/2007.
3. After remand on 09/06/2007 the petitioners put their appearance in the trial Court but the Presiding Officer was on leave and the staff of the Court apprised them that on receiving the record from the Court of appeal, parties would be summoned for the date fixed for next proceedings. The trial Court on receiving record from the Appellate Court, sent the same to the Court of Mr.Gohar Rehman the then Additional District Judge-XI, Peshawar which was requisitioned by his predecessor vide order dated 12/01/2005 in Civil Revision No, 15 of 2007. After receipt of the record back, the trial Court summoned the parties for 25/10/2007 but they could not be served for the first time and on 28/02/2008 the case file was sent to the learned District Judge, Peshawar for entrustment to another Civil Judge for disposal which was entrusted to Mr. Ashraf Ali. Civil Judge, Peshawar for disposal by the learned District. Judge, Peshawar vide his order dated 29/02/2008 and the date 01/03/2008 was given for appearance of the parties before the said Civil Judge who on 09/04/2008 dismissed the suit of the petitioners in default.
4. The petitioners having learnt about the dismissal of their suit for non-prosecution on 20/06/2008, they submitted an application for restoration of the same on the following day i,e, 21/06/2008 which was only contested by Defendants No, 5 & 7 and after hearing the learned counsel for the parties, the same was dismissed vide judgment/order dated 20/12/2010 being barred by time.
Feeling aggrieved from the aforesaid judgment/order of the trial Court, the petitioners preferred appeal which too met the same fate vide judgment/order of the learned Additional District Judge- VI, Peshawar dated 19/04/2012, hence the instant revision petition.
5. I have heard the learned counsel for the parties and have also gone through the record of the case with their able assistance.
6. Perusal of the record reveals that both the Courts below have held that Article 163 of the Limitation Act was applicable in the instant case and, therefore, the application for restoration of the suit should have been filed within thirty days from the date of such dismissal and not Article 181 of the Limitation Act. It is not necessary in this case to decide as to whether Article 163 of the Limitation Act was applicable in the case as argued by the learned counsel for the respondents or that it was Article 181 of the Limitation Act which was applicable as argued by the learned counsel for the petitioners. As contended by the learned counsel for the petitioners that the suit of the petitioners was dismissed without notice to them on a date i,e, 09/04/2008 which was not a date of hearing is sufficient for the purpose of holding that the dismissal of the suit for non-prosecution is not legally sustainable.
7. Perusal of record also reveals that on the receipt of the file from the Court of learned Additional District Judge-XI, Peshawar, the learned trial Court issued notice to the parties for 25/10/2007 and on 25/10/2007, 10/11/2007 the Presiding Officer was on leave and on 15/12/2007 and 28/01/2008 the Presiding Officer was stated to be transferred and on 28/02/2008 the learned Civil Judge sent the file to the learned District Judge, Peshawar for want of his jurisdiction and on the next. Day i,e, 29/02/2008 the learned District Judge, Peshawar entrusted the case to Mr.Ashraf Ali Khan, Civil Judge, Peshawar and a date i.e, 01/03/2008 was given to appearance of the parties in the said Court. On receipt of the file, on 01/03/2008 Shah.Jehan defendant was marked present while none present for the plaintiff and the case was adjourned to 12/03/2008 on which date clerk of counsel for the petitioners informed the Court that the petitioners have no contact with them, therefore, again notice was issued to the petitioners for 09/04/2009 and on the said date according to the trial Court that plaintiff Rehmat Khan had signed the notice but no one present, hence the suit was dismissed for non-prosecution. Record further reveals that the petitioners have instituted a suit against the respondents in the year 1992 and during this long period they are regularly appearing and attending the various Courts which clearly shows their interest in pursuing their case. Even otherwise the petitioners including Rehmat Khan Plaintiff had appointed Shah Jehan as their attorney and there is nothing on record that the said attorney has ever been served in the case.
8. The above referred circumstances clearly show that the petitioners were not in fault, therefore, cannot be blamed for the dismissal of their suit for non-prosecution. The question of limitation in respect of the application seeking restoration of the suit would only be relevant if the dismissal itself was proper. Law rather than foreclosing cases on mere technicalities, favours adjudication of disputes on merit. The superior Courts also held in a number of judgments that the cases must be decided on merits instead of technicalities. In a case (PLD 1989 Supreme Court 532), the Apex Court held that "a party should not be denied a relief on account of technicalities in the procedural law as the same is formed for the purpose of regulating the legal proceedings through their design extended and design of foster the cause of justice than to defeat it". Subsequently, the aforesaid judgment was also considered in (1993 SCM R 363) and followed the same principle.
9. In view of what has been discussed above, the instant revision petition is allowed, judgments & decrees/orders of both the Courts below are set aside, application of the petitioners for restoration of the suit is accepted and the case is remanded back to the learned trial Court with the direction to proceed with its trial in accordance with law. Since it is an old.Matter pertaining to the year 1992, the trial Court is directed to conclude the same as expeditious as possible. Parties are directed to appear before the trial Court (Civil Judge-XVIII, Peshawar) on 12/01/2015.