SHAHNAWAZ TARIQ, J.---Through captioned civil miscellaneous application under Order XLIII Rule 1(c) C.P.C., applicant Syed Sajid Ali Shah has impugned order dated 27.06.2015, passed by the Court of learned Additional District Judge, Kandiaro, whereby application moved by applicant under Order IX Rule 9 C.P.C., was declined.
2. Relevant facts narrated in instant misc. Application are that applicant is brother of deceased Syed Abid Ali Shah who died on 13.04.2014 due to natural death, such death certificate is issued by the Secretary Union Council No,2, Mehrabpur, District Naushero Feroze. The deceased left behind one wife and 3 minor sons being his surviving legal heiRs, The deceased was employed in Dubai Petroleum and lastly was posted at Dubai and his gratuity amount worth 75,923 US Dollars along with mark-up, is lying with the company. Consequently, applicant filed succession application which was admitted and notice was issued to all the concerned and publication was made in Newspaper for information to public at large. It is further averred that when matter was fixed for report of the company and learned counsel for applicant was in attendance, said succession application was dismissed for non-prosecution due to absence of applicant. Applicant instantly filed application under Order IX Rule 9, C.P.C. For restoration of succession application but same was also dismissed by learned trial Court vide impugned order, hence instant civil misc.
Application.
3. Learned counsel for applicant contended that applicant has filed succession application regarding issuance of succession certificate in respect of amount left by the deceased and case was fixed for report but learned trial Court vide order dated 13.06.2015, dismissed the succession application for non-prosecution though counsel was present in Court; that applicant moved application for recalling of impugned order but learned trial Court dismissed such application without applying its judicial mind.
4. Mr. Riaz Ali Shaikh Advocate files his Vakalatnama on behalf of respondents, which is taken on record and he extended no objection. Learned State counsel has also extended no objection.
5. Heard learned counsel for the parties and examined the material available on record.
6. Perusal of material available on record and consideration of the arguments advanced by learned counsel for the parties, emanate that applicant filed instant succession application in respect of the gratuity amount of deceased lying with Dubai Petroleum Company, Dubai and there is precedent condition to obtain succession certificate from the concerned Court of Pakistan, enabling the legal heirs to receive said amount from the company. It is significant to mention that while, main succession application was fixed for submission of report by said Company regarding the availability of 75,923 US Dollars, learned trial Court without . Assigning any cogent reason, has dismissed the main application on the score of non-prosecution though counsel for applicant was in attendance. Indeed, there was no direction by the Court for the appearance of applicant in person on said date and it was a formal date for submission of report. Similarly, application moved by applicant under Order IX Rule 9 C.P.C. For recalling of order dated 13.08.2015, and restoration of main application on its original stage, which was filed within time, but learned trial Court after hearing the arguments of learned counsel for applicant dismissed said restoration application by a short order without assigning any cogent reason in support of the impugned order. It is well settled that case should be decided on merits rather than on legal technicalities. Indeed, case was fixed for a formal purpose and not for hearing and there was no specific direction of the Court for appearance of the party in person, thus Court cannot dismiss the main case for non-prosecution when it was fixed for a formal purpose and such dismissal order being an illegal is not sustainable in law.
7. Considering the above circumstances, instant civil miscellaneous application stands allowed as prayed and impugned orders dated 17.06.2015 and 13.06.2015, are hereby set-aside and succession application is restored to its original stage and learned trial Court is directed to decide the main succession application filed by applicant, strictly on merits and in accordance with law.