GHULAM MUST AFA MUGHAL, J.---- The captioned appeal by leave of the Court has been filed against the judgment dated 26.11.2018, passed by the Azad Jammu and Kashmir High Court in Revision Petition No. 34 of 2018.
2. The precise facts forming the background of the captioned appeal are that the appellants, herein, filed a suit for declaration-cum-perpetual injunction and possession against respondents Nos.1 to 5, herein, before the Senior Civil Judge Muzaf farabad on 15.01.2005. On filing of the suit, the defendants/respondents, herein, were summoned, who contested the suit by filing written statement. After recording the evidence of both the parties, the case was at the stage of final arguments when on 24.05.2014, no body appeared on behalf of the plaintif f/appellants, herein, whereupon the trial Court dismissed the suit for non-prosecution vide order dated 24.05.2014. On 20.11.2015, the plaintif fs/appellants, herein, filed an application for restoration of the suit before the trial Court. The other side filed objections on the application. The trial Court after bearing the parties, dismissed the application on the ground of limitation, vide order dated 25.02.2017. Feeling dissatisfied, the appellants, herein, filed an appeal before the Additional District Judge, Muzaf farabad, who after hearing the parties accepted the appeal and restored the suit dismissed for non-prosecution, vide order dated 16.01 .2017. The respondents herein, challenged the order of the Additional District Judge before the High Court by filing a revision petition. After necessary proceedings, the learned High Court through the impugned judgment dated 26.11.2018 has accepted the revision petition and set aside the order of the Additional District Judge. Resultantly , the order of the trial Court through which the application for restoration of the suit was dismissed on the ground of limitation, stood restored.
3. Ch. Shabir Ahmed, the learned Advocate appearing for the appellants argued with vehemence that the evidence of the parties in the suit titled Sardar Tabarak Ali v. Administrator Municipal Corporation Muzaf farabad , was complete and the statement of the commission was recorded on 10.05.2014. The learned Advocate further argued that the case was fixed for final arguments on 24.05.2014, when the same was dismissed in default. The learned Advocate further argued that the case could not have been dismissed in default because the evidence stood completed and it was enjoined upon the trial Court to decide the case. The learned Advocate submitted that as the order of dismissal of the suit in default was ab initio void, hence, the question of limitation does not arise and the learned High Court should not have dismissed the suit on the ground of limitation rather it was the duty of the Court to hear the arguments and decide the case on merit because law favours adjudication on merit. He further submitted that the judgment passed by the learned District Judge was not quite in accordance with law and the same has wrongly been set aside by the learned High Court through the impugned judgment dated 26.11.2018.
The learned Advocate further submitted that it was not the case covered under Order XVII, Rule 2, C.P.C., rather rule 3 was applicable.
4. Conversely , Mr. Muhammad Sagheer Javed, the learned Advocate appearing for the other side argued that the application for restoration of the suit was filed after 1-1/2 years without the application for condonation of delay and plausible explanation, therefore, the judgment of the trial Court was apt and in accordance with law, whereas, the learned District Judge failed to understan d the true position of case while accepting me appeal and restoring the suit. He submitted that the impugned judgment of the learned High Court is in accordance with law which may be upheld.
5. We have heard the learned counsel for the parties and have gone through the record of the case with our utmost care. A perusal of the record reveals that a suit for declaration and perpetual injunction was filed by Sardar Tabarak Ali, appellant, herein, before the learned Civil Judge Court No.1, Muzaf farabad on 24.12.2018. The learned trial Court recorded the statement of the commission on 10.05.2014 and fixed the case for final arguments on 24.05.2014. On 24.05.2014, the case was called on for hearing the plaintif f was not present and the learned trial Court dismissed the suit for non-prosecu tion. For proper appreciation, both the interim order are reproduced as under:-- {{URDU TEXT}} A perusal of the above reproduced orders, would show that after recording the evidence on 10-5-2014, the learned trial court adjourned the case for 24.05.2014, for final arguments and on the said date the suit. was dismissed in default. In our considered view, the course adopted by the learned trial Court was not warranted and against the canons of justices. It was enjoined upon the Court to decide the case on the basis of available material as has been claimed by Ch. Shabbir Ahmed, the learned Advocate for the appellants because the parties were given date for arguments. Be that as it may, the dismissal of the suit after closing the evidence without deciding the same on merits was not justified and in such circumstances the application for restoration of the suit filed within a period of 3 years cannot be treated as time barred. We are of the view that when an order of the Court itself is illegal and prejudices the case of a party , then this fact can be considered as sufficient cause for restoration of the suit dismissed in default. Reference may be made to the case reported as Mst. Shamshad Begum alias. Sharam Khatoon v. District and Sessions Judge, Dadu through Presiding Officer and 4 others [1998 CLC 1128], wherein at page 1 131 of the report, the learned Division Bench of the Karachi High Court has observed as under:- "It is an admitted position that the learned respondent No.2, on the failure of Advocates of the parties to argue the case, had dismissed F.C. Suit No.46 of 1993 for non-prosecution ignoring the fact that the evidence of the parties to the suit had already seen concluded. It will be pertinent to mention here that the provisions of Order XVIII, Rule 2, C.P.C. do not necessarily require the advancement of arguments. Requirement of the said provisions of law is that in case parties wish to advance arguments in support of their cases then the Court has to afford them an opportunity to do so, but hearing of arguments before disposing of the case is not essential. The above proposition of law finds support in a Division Bench judgment passed in the case of Abdullah and another v. Mian Tafuzal Hussain and another reported as PLD 1961 Baghdad-ul-Jadid 58 "
The same view was reiterated in the cases reported as Messrs Fateh Textile Mills Ltd. v. West Pakistan Industrial Development Corporation [PLD 2008 Karachi 103], Wadera Dalel Khan and 7 others v. Province of West Pakistan and 6 others [PLD 1970 Quetta 79], Lasbela Industrial Estate Development Authority (LIEDA) v. Messrs Baluchistan Match Ltd through Chief Executive and others [PLD 2005 Quetta 57] and Mrs. Asmat Begum v . Badiuzzaman Khan [2002 CLC 71 ].
6. We have also noticed that though the application was filed at a belated stage and the appellants, herein, were negligent but in that case they could be burdened with cost. Moreover , the learne d High Court has exercised the revisional jurisdiction in the present case which was not justified because the order of the learned Additional District Judge Muzaf farabad which was impugned before the learned High Court advances the cause of justice and equity .
In such circumstances, the revisional jurisdiction should have been refused. - The upshot of above discussion is that the appeal is accepted and the impugned judgment of the learned High Court is hereby recalled. The `judgment/o rder passed by the learned Additional District Judge Muzaf farabad dated 16.01.2017 stands restored. The restoration of the suit, in view of the negligence of the appellants, herein, will be subject to the payment of Rs.10,000/- as cost which shall be paid in the trial Court within one month after receipt of this order failing which the suit would be deemed to be dismissed for non-compliance of the Court's order .