Muhammad Khalid Mehmood Khan, J. Through this constitutional petition, the petitioner has assailed the constitutionality of orders dated 18.06.2007, 19.12.2006 and 21.07.2005 passed by learned trial court as well as learned revisional court.
2. Briefly stated the facts of the case are that the petitioner filed a suit for recovery of Rs.21,60,671/- against respondent No.3 being the outstanding sui gas consumption bill. On 21.7.2005 the learned civil court dismissed the suit for non-prosecution. On 30.7.2005 the petitioner filed an application for restoration of suit claiming that on 22.7.2005 their learned counsel was busy in connection with other cases in the High Court, and Board of Revenue; the clerk of petitioner's counsel appeared in court and requested the Reader of court for marking the counsel's presence but the Reader of court asked him to call the counsel then he will mark the counsel's presence; the clerk of the counsel then went to High Court, for bringing the counsel and when he came back he was informed that the suit has been dismissed for non-prosecution, the suit cannot be dismissed for non-prosecution as the clerk of the counsel has got the presence of his counsel marked in the early session of the court. It was further asserted that the non-appearance of the petitioner and their learned counsel was not intentional but was due to his professional engagements in other cases. The application was supported by an affidavit of Mr. Amir Zahoor Chowhan, Advocate. The learned trial court on 19.12.2006 dismissed the application holding that the absence of the applicant-company as well as their counsel is willful and is to avoid the application of Order XVII Rule 3 CPC, as the applicant-company was not producing the evidence from the last three years and again on 21.5.2005 the petitioner's evidence was not present. The petitioner filed revision against order dated 19.12.2006 and the learned revisional court by agreeing with the findings of learned trial court dismissed the revision petition, hence, the constitutional petition.
3. Learned counsel for the petitioner contends that the absence of petitioner and their learned counsel was not intentional; in fact the petitioner's counsel was busy in connection with other cases in High Court, and Board of Revenue as such he was unable to appear on the first call by the learned trial court, the petitioner's witnesses were waiting in the office for the call of their counsel for appearance; the petitioner's clerk on 22.7.2005 when contacted the court, he came to know about the dismissal of the suit under Order IX Rule 8 CPC. The argument of learned counsel for the petitioner is that in the absence of the petitioner, the provisions of Order XVII Rule 3 CPC could not be invoked; further the question, subject matter of the restoration application was whether there exists sufficient cause or not and this fact can only be established after recording evidence; the learned trial court has dismissed the petitioner's application summarily. He adds that in application the date of hearing has wrongly been mentioned as 22.07.2005 instead of 21.07.2005; the petitioner may be allowed to amend the petition.
4. Learned counsel for respondent No.3 submits that the petitioner is arguing his case on the facts which are not the part of the application; the petitioner has stated in the application that on 22nd of July, 2005 the clerk of the petitioner's counsel attended the court and informed the Reader to mark his learned counsel's presence as he is busy in connection with other cases in High Court, and the Board of Revenue. Learned counsel submits that on 22.07.2005 the case was not on the cause list of the court, how the presence of counsel could be marked when the case was not fixed for hearing. The case was dismissed on 21.07.2005 when no one appeared on behalf of the petitioner. Learned counsel submits that the learned trial court has not dismissed the suit by invoking the provisions of Order XVII Rule 3 CPC, the learned trial court while dismissing the petitioner's application has opined that absence of the petitioner was intentional as the petitioner was avoiding to produce the evidence from the last three years. The argument of learned counsel for respondent is that the petitioner has submitted a false affidavit and tried to defraud the court, hence the petitioner is not entitled for any discretionary relief; the petitioner failed to appear on the date of hearing, it was the negligence of the counsel and the petitioner have a remedy against their counsel for the redressal of their grievance; the learned courts below have rightly dismissed the petitioner's application, Learned counsel has relied on Mian Muhammad Asif versus Fahad and another (2009 SCMR 1030), Arshad Mahmood and others versus Pak Kashmir Maches Factory, Mirpur and 25 others (1993 CLC 378) [Azad J & K], Kh. Ghulam Qadir and another versus Muhammad Sharif and 11 others (2000 MLD 2047) [Supreme Court (AJ&K)], Saifullah Siddiqui versus Karachi Electric Supply Corporation Limited (1997 SCMR 926), Rafiq Ahmad Khawaja versus Abdul Haleem (1982 SCMR 1229), Collector of Gujrat and another versus Abdul Shakoor and 2 others (2004 MLD 1346) [Lahore] and Rex Talkies (Pvt.) Ltd. and another versus Samir Oosman and 2 others (PLD 2007 Karachi 362).
5. Heard. Record perused.
6. It is an admitted fact that huge amount being the sui gas consumption is involved in the case which is admittedly the public money. The learned trial court on 21.07.2005 dismissed the suit for non prosecution as no one was present on 21.7.2005. The perusal of impugned order shows that on 21.7.2005 when the court called the case the court time was over and no one was present on behalf of petitioner/plaintiff, Now the question is whether the court can dismiss the suit for non prosecution after court time or not? Order IX Rule 8 CPC which provides that where the plaintiff fails to appear the court can dismiss the suit. The record shows that on 21.07.2005, the learned trial court passed the following order:-
7. On 02.07.2005, the case was fixed for recording the petitioner/plaintiff's evidence and the learned trial court passed the following order:-
8. There is no doubt that on 21.7.2005 the case was fixed for recording the petitioner evidence, but the record shows that the court has not called the case during the court time and called the case when the court time was over. The petitioner on 29.7.2005 filed application for recalling the order dated 21.07.2005 and has set out his case in the application that on 22.07.2005 learned counsel for the petitioner was busy in connection with other cases in the High Court, and Board of Revenue; the clerk of the counsel appeared in court on 22.07.2005 and informed the Reader about the professional engagements of learned counsel for the petitioner but the Reader of the Court asked the counsel's clerk to bring the counsel. This assertion of the petitioner is supported by an affidavit of learned counsel for the petitioner Mr. Amir Zahoor Chaudhry, Advocate.
9. The argument of learned counsel for the respondent is that on 22.07.2005 the case was not on the cause list of the learned trial court, hence, on the face of it the application is based on wrong and fraudulent facts. Further, the affidavit is also a fraudulent attempt to get the suit restored. The argument of learned counsel for the respondent has force but the impugned order dated 21.07.2005 shows that the case was called when the court time was over. It seems that due to rush of work the learned trial court was unable to even attend the case in the entire session of court time. The words used in the impugned order are that the court time is over and no one is in attendance on behalf of the plaintiff, this means the learned trial court has passed the order after the court time was over. Thus the logical conclusion is that after the court time is over the order passed has no legal value, the parties are bound to appear in court within the court time and not after the closure of courts.
10. The petitioner has stated in the application that on 22.07.2005 the clerk of the counsel went to the learned trial court for attending the case. Learned counsel has argued that date of hearing was 21.7.2005 and due to slip of pen the date of hearing was written as 22.7.2005 in the application and the petitioner may be allowed to amend the petition. No doubt prima facie it seems that the petitioner has filed an application on wrong facts but it is settled principle of law that pleadings can be amended even at the stage of final appeal if the nature of the suit or defense is not changed and the substance of the suit or written defense remain the same. In para 1 of the petition the date of hearing has been mentioned as 21.7.2005 but in all subsequent paras of the petition the date of hearing is written as 22.7.2005, the matter whether the mentioning of the date of hearing as 22.7.2005 is due to slip of pen or intentional is question of fact which can be ascertained after recording the evidence and tentatively it can not be assessed that petitioner counsel intentionally failed to appear or his non appearance was unintentional, whether the court can dismiss the suit for non prosecution after the court time. Whether the parties are bound to appear before the court after the court time, whether the Presiding Officer of the court has the jurisdiction to pass any order after the court time is over. All these questions are the questions of facts which can be resolved after recording the evidence. The learned trial court as well as the learned revisional court has erred in law while dismissing the petitioner's application summarily without recording the evidence.
The learned trial court should have framed the issues on the points referred to above. The learned trial court wrongly assumed that the petitioner's absence is only due to the reason that they were avoiding to produce the evidence; on 21.07.2005 the case was fixed for recording the petitioner's evidence and the evidence was not available with the petitioner, so the petitioner opted not to appear on 21.07.2005. This assumption of the learned trial court may be correct but without recording evidence the conclusion drawn by the learned trial court is not correct. It is true if the counsel of the petitioner is negligent, the petitioner have the remedy against their counsel and the petitioner by absolving the counsel can not request the court for restoration of the suit but it is again subject to proof of negligence and the negligence can only be proved after recording the evidence. The learned trial court thus was bound to frame the issues as the facts stated in the application are complicated one and the petitioner's application could not be decided summarily without recording the evidence. In these circumstances, the impugned orders are set-aside and the petitioner's application for restoration of the suit will be deemed to be pending before the learned trial court; the learned trial court will decide the application after recording the evidence keeping in view of the legal points referred to above.
11. The writ petition is allowed in the above- said terms.