ROOH-UL-AMIN KHAN, J.---Through this common order, we, propose to decide the instant Civil Misc. Petitions Nos,27-P of 2017 and 28-P of 2017, filed by Pakistan Match (Pvt.) Ltd., the petitioner, for restoration of the Sales Tax References Nos,20-P and 21-P of 2010, (inadvertently mentioned as "Custom Reference" in some order-sheets of this Court) (hereinafter to be referred as the References), dismissed for non-prosecution vide orders dated 07.04.2016, while C.Ms No, 1-P and 2- P 2017, have been filed for condonation of delay in filing applications for restoration of the References.
2. Learned counsel for the petitioner contended that his and the petitioner's absence on the date of dismissal of the References, was neither intentional nor contumacious, but due to misconception that initially the References were filed by Barrister Adnan Saboor, on behalf of the petitioner, who, later on, was superseded by Mr. Abdul Rauf Rohail, Advocate. Similarly, the latter was superseded by him (Mr. Shomail Ahmad Butt, Advocate). In this view of the matter, summons was, inadvertently, issued by the office to Mr. Abdul Rauf Rohaila, Advocate, who no more was representing the petitioner, that's why neither he himself appeared before the Court nor did he inform the petitioner about the date of hearing, as a result, the References were dismissed for non- prosecution. He further contended that the moment, the petitioner came to know about the dismissal of References, he filed the instant applications for restoration. On legal premises, the learned counsel argued that in Sales Tax Reference the Court has to answer some legal questions, therefore, on admission of the Reference for regular hearing, dismissal on the ground of non- prosecution is not legally well-recognized for the reason that, on one hand, in the entire Sales Tax Act, 1990 (hereinafter to be referred as the Act of 1990) there is no provision for restoration of Reference dismissed in default or non-prosecution, while on the other hand, on admission of the Reference for regular hearing, the matter comes between the two Courts, hence, requested for setting aside of the impugned orders.
3. Conversely, learned counsel for the respondents contended that the petitioner, after admission of the References for regular hearing and getting interim relief, deliberately avoided appearing before the Court so as to enjoy the fruits of the interim relief, hence, at this belated stage, the References cannot be restored.
4. Having heard the arguments of learned counsel for the parties, it appears from the record that the References were initially filed by Barrister Adnan Saboor, on behalf of the petitioner, which came up for hearing before this Court on 22.04.2010. This Court being satisfied that a question of law arises out of the impugned order of the Appellate Tribunal in terms of section 47(3) of the Act of 1990, admitted the references for regular hearing and suspended the recovery process. On 04.04.2012, the References came up for regular hearing, but despite repeated calls, neither the petitioner nor counsel for the petitioner appeared before the Court. Resultantly, the References- were dismissed for non-prosecution, but on application of the petitioner, the References were restored vide orders dated 05.09.2012 and posted to 12.09.2012 for hearing. On the aforesaid date, Barrister Adnan Saboor, worthy counsel for the petitioner appeared before the Court, on which date, due to paucity of time, the References could not be heard and were adjourned to a date in office. In the meantime, Barrister Adnan Saboor, the worthy counsel for petitioner, disassociated himself from the cases, whereas, Mr. Abdur Rauf Rohail, Advocate, was representing the petitioner.
Since 21.05.2013 till 25.02.2016, the References were persistently adjourned due to non-availability of learned counsel for one or the other side. We have noted that during the interregnum period, Mr. Shomail Ahmad Butt, Advocate, submitted C.M.23-P/2015 along with Wakalat nama in favour of the petitioner, consequently, the interim relief was granted vide order dated 01.07.2015 by suspending the operation of the impugned demand notice till the date fixed i,e, 21.07.2015. Thereafter, the office instead of effecting service of Mr. Shomail Ahmad Butt, Advocate, issued notices to Mr. Abdur Rauf Rohail, Advocate, who was no more representing the petitioner. Resultantly, the References were dismissed for non-prosecution vide orders dated 07.04.2016.
5. Undisputedly, the References had been brought, by the petitioner for determination of certain questions of law. This Court being satisfied in terms of section 47 (3) of the Act of 1990, to proceed with the References, formulated questions of law and admitted the Reference for regular hearing to answer it. The words "The High Court upon hearing a reference under this section shall decide the question of law raised by the reference" employed in section 47(5) of the Act of 1990 are of much significance, as it leave no room for the High Court to dismiss the Reference for non-prosecution.
The section further provides that on deciding the legal question and modifying or maintaining the order of the Tribunal, the High Court is under an obligation to send a copy of the judgment to the Appellate Tribunal and that too under its seal. The language of the above quoted section, not only indicate the intent of Legislature for decision of the Reference on merits, but also a lay a heavy duty on the Court to answer the Reference and the verdict to the Tribunal under the seal of the Court. In our view, the dismissal of Reference for non-prosecution shall make the provision of section 47 (5) as redundant, which definitely is not the intention of the Legislature, because redundancy cannot be attributed to the Lawmakers.
6. We have thrashed out the Act of 1990 as well as the Rules there-under, most particularly, the enabling provisions pertaining to the Appeals and Reference in greater details, but could not find any law enabling the High Court to return the Reference without answering the legal question raised therein. The Act of 1990 and the Rules there-under, do not provide any provision for attendance of the parties and rendering assistance of the Court, rather section 47(4) of the Act of 1990, imposes a laden duty upon the High Court that the reference "Shall" be decided and the questions of law raised by the Reference shall be answered by delivering judgment thereon specifying the grounds on which such judgment is based. It is also a mandatory requirement of the law that the High Court shall send a copy of the judgment under its Seal to the Appellate Tribunal for future guidance and necessary action. The provisions of the Act of 1990 with regard to Reference to the High Court cannot be equated with the powers of the Appellate Court. Moreso, under the scheme of the Act of 1990, there is no power with the High Court to dismiss the Reference for non-prosecution, rather it is incumbent upon the High Court to adjudicate the Reference on merits made to it by an aggrieved person or an appropriate Government authority. Once the Reference is made, it has to be answered on its own merits and not to be dismissed for non- prosecution.
7. The contention of the learned counsel for the ,respondents that there is no provision under the Act of 1990 for restoration of the Reference dismissed for non-prosecution, therefore, the References cannot be restored, is misconceived. The reason is that if there is no provision for restoration of Reference dismissed for non-prosecution, then it is equally true that there is also no provision for dismissal of Reference for non-prosecution. Besides, when the Court has power to dismiss the Reference in default or for non-prosecution, it would amount to not deciding the Reference at all in any manner. Thus, the Reference shall be deemed as pending before the Court.
We deem it appropriate to mention here that the provision of section 47 (5) of the Act of 1990, is synonymous to section 115, C.P.C., wherein too, there is no provision for dismissal of civil revision for non-prosecution, therefore, the C.P.C., does not provide any remedy for restoration of the same. A similarly, controversy came up before the hon'ble apex Court in case, titled, "Mithammad Sadiq v.
Mst. Bashiran and 9 others" (PLD 2000 Supreme Court 820), wherein, the question of dismissal of a civil revision for non-prosecution after its admission for regular hearing, has been elaborately dealt with. The relevant part of the judgment is reproduced which reads as under:-- "Dismissal of a civil revision after its admission by the Court seized with it for non-prosecution is not legally well-recognized for the reason that jurisdiction of a revisional Court under section 115, C.P.C. is invoked by an aggrieved person to point out illegalities or irregularities or the jurisdictional defects in the proceedings and the orders passed by the subordinate forums, therefore, on entertaining a revision petition, Court exercises its supervisory jurisdiction to satisfy itself as to whether jurisdiction has been exercised properly and whether proceedings of the subordinate Courts do suffer or not from any illegality or irregularity. In other words, after filing a revision, matter rests between the revisional and subordinate Courts. Court after having entertained a civil revision instead of dismissed it in default, may take efforts to dispose it of in accordance with the parameters laid down by section 115, C.P.C. There is no doubt that civil revision under section 115, C.P.C., entertained by the High Court has to be disposed of in view of provisions of section 117, C.P.C., a thorough survey of C.P.C. will indicate that there is no provision for recalling/setting aside the order dismissing a revision for non- prosecution. There are many other proceedings under C.P.C. in respect of which no procedure has been laid down if the same is dismissed for non-prosecution. ..
There is no specific provision in C.P.C. to restore a revision dismissed for non-prosecution, therefore, an aggrieved party can claim relief under section 151, C.P.C."
8. The Record divulges that the References were filed in March 2010, wherein the questions of law for determination were formulated by this Court on 22.04.2010 and subsequently, on 04.04.2012, the References were dismissed for non-prosecution due to lack of interest of the petitioner, but were restored vide order dated 05.09.2012. Keeping in view the age of the References these were posted to 12.09.2012. Since then, the References were persistently adjourned due to lethargic conduct of the petitioner and were ultimately dismissed vide orders dated 07.04.2016. The petitioner has lingered on the proceedings for a long period of about 07 years for no plausible justification whatsoever. It follows that the petitioner wanted to enjoy the fruits of interim order passed on the first date of hearing i,e, 22.04.2010. Keeping in view the deliberate negligence on the part of the petitioner, it would be appropriate and in the interest of justice to burden the petitioner with a heavy cost.
9. Deriving wisdom from the judgment (supra) of the hon'ble apex Court and the law on the subject, the impugned orders of this Court are hereby set aside. The References shall be deemed as pending as dismissal for non-prosecution is, not akin to deciding a Reference ex-parte, however, keeping in view the lackadaisical, non-cooperative and lethargic conduct of the petitioner in bringing the matter into the notice of this Court with an abnormal delay of almost 09 months, coupled with the age of the References pending since 2010, the petitioner is burdened with a cost of Rs,25,000/- in each Reference to be paid the other side. The applications/CMs are disposed of accordingly. The References are posted to 24.01.2018.