' The instant petition is directed against the judgment dated 24 of June, 2014, whereby the learned Additional District Judge, Faisalabad, while allowing the revision petition filed by the Respondent No, 2 set-aside the order dated 16th of January, 2014 passed by the learned Civil Judge, Faisalabad.
2.Precisely, the facts necessary for adjudication of instant petition are that the Respondents No, 1 & 2 filed, a suit for declaration, permanent and mandatory injunction against the petitioner and proforma respondents challenging the vires of electricity bill for the month of September, 2007. The suit was dismissed due to non-prosecution on 07th of December, 2011. The Respondent No, 2 filed an application for setting aside the said order which was resisted by the petitioner and the same was dismissed by way of order dated 16th of January, 2014. The Respondent No, 2, feeling aggrieved from the said order, filed revision petition before the learned Additional District Judge, Faisalabad.
The revision petition was allowed by way of judgment dated 24th of June,. 2014, hence this petition.
3. Learned counsel for the petitioner submitted that revision petition was not competent before the learned lower appellate Court. He added that the impugned judgment is not tenable. Learned counsel contended that the application for setting aside order dated 07th of December, 2011 was barred by time and Respondent No, 2 has failed to bring on word any sufficient cause for condonation of delay.
4. Conversely, learned counsel for the respondents submitted that the order dated 16th of January, 2014 dismissing the application of the respondents was unwarranted by law. He added that the revisional Court has rightly exercised its jurisdiction in terms of impugned judgment and no illegality is committed by the learned Additional District Judge, while allowing the revision petition.
5. I have heard the learned counsel of both the sides and perused the record.
6. The suit was dismissed due to non-prosecution vide order dated 07th of December, 2011. For the purpose of convenience and ready reference, the order is reproduced below:-- "ORDER.
' Present:--None.
' Suit called repeatedly. But no one appeared on behalf of the plaintiffs in spite of repeated calls.
Now it 03:15 p.m. And Court time is about to over. In the circumstances, the Court is left no option accept to dismiss the suit in hand for non-prosecution. Hence, the suit in hand is dismissed for non-prosecution. File be consigned to record room after its due completion."
' It is evident that on the day of passing of order, nobody was in attendance, so the suit was dismissed in terms of Order IX Rule 3 of The Code of Civil Procedure (V of 1908). Though the Respondent No, 2 filed an application for setting aside the ex-parte order under Order IX Rule 9 of the Code, ibid but it appears that while moving the application, the Respondent No, 2 mentioned the wrong provisions of law in his application. Mere wrong mentioning of any provisions of law will not operate as hurdle in the way of Court to exercise its jurisdiction by invoking the actual provision of law to foster the justice.
7. Had the suit been dismissed in terms of Rule 8 of Order IX then an order rejecting the application for restoration is appealable under Order XLIII Rule 1(c) of The Code of Civil Procedure (V of 1908), whereas dismissal of suit in terms of Order IX Rule 3 on account of non-appearance of the parties is to be restored by way of an application in terms of. Order IX Rule 4 of The Civil Procedure Code (V of 1908). An order under Order IX Rule 4 of the Code, ibid is not appealable in terms of Order XLIII, thus a revision petition was competent before the learned Additional District Judge. Guidance in this respect can be sought from "Messrs Sea Breeze Ltd. Through Authorized Officer versus Mrs. Padma Ramesh and another" (2012 M LD 39) "Mst. Noor Jahan versus Mst. Roshan Jahan and 6 others (1994 SCM R 2265), "Arshad Mahmood and others versus Pak Kashmir Maches Facory, Mirpur and 25 others" (1993 CLC 378) and "Mat. Razia Begum versus Chairman Intermediate and Secondary Board, Mirpur" (1979 CLC 288).
8. So far the question of limitation is concerned, it is evident that the suit was dismissed on 07th of December, 2011 whereas the Respondent No, 1 died on 08th of July, 2011 prior to the passing of said order and his legal representatives were not impleaded in the suit. The learned Additional District Judge, while allowing the revision petition has dealt with the question of limitation. I have also gone through the reasons advanced by the Respondent No, 2 resulting into delay in filing the application for restoration. After examining the reasons, I am in- agreement with the learned Additional District Judge that the delay in filing the application for restoration was not contemptuous. Even otherwise, law favors adjudication on merits. The parties cannot be non-suited on the basis of technicalities.
The revisional Court has exercised its jurisdiction, while exercising the powers ordained in Section 115 of The Civil Procedure Code (V of 1908) and apparently no illegality has been committed by the said Court, while allowing the revision petition. This Court always exercises restraint, while interfering with the order of 115 the revisional Court in exercise of its constitutional jurisdiction. The petitioner has failed to point out any illegality or perversity in the order under challenge which is sine-qua-non for invoking the constitutional jurisdiction against the order passed by a sub- ordinate Court in its revisional jurisdiction:'
9. For the forgoing reasons, I am of the considered view that the instant petition is without any merits and consequently the same is dismissed with no order as to costs.