KHADIM HUSSAIN M. SHAIKH, J.---The captioned revision application is directed against order dated 14.04.2012, passed by the learned IInd Additional District Judge, Sanghar , dismissing Civil Miscellaneous Appeal No.16 of 2010 re: Province of Sindh and another v. Atta Muhammad and others , filed against order dated 31.07.2010, dismissing the application under Order IX Rule 9 of the Code of Civil Procedure [Act-V 1908] [" the code "] and declining restoration of the subject suit being F.C. Suit No.40 of 2005. re: Province of Sindh and others v . Atta Muhammad and others , which was dismissed for non-prosecution vide order dated 09. 04 . 2010.
2. Briefly the facts of the case are that Government of Sindh through Secretary Forest and Divisional Forest Officer, District Sanghar , filed the subject suit against Atta Muhammad, his brother Khuda Bux and Revenue Authorities on 08.12.2005 in respect of the suit land bearing survey Nos. 413 to 439 admeasuri ng 96-19 acres, stating that the suit land is Government Forest land; the Government of Sindh vide Notification, No.R-10456-H(b) 44 dated 27th November 1947 had reserved land admeasuring 22805-00 acres including the suit land as Forest Land in Khipro District Sanghar , and such mutation stood carried out in the record of rights in the name of Forest Department, and the aforesaid land also remained in possession of the Forest Department. Suddenly the suit land was illegally got allotted by the defendants Nos.1 and 2 ["the respondents Nos.1 and 2] malafidely in their favour in collusion with the Revenue Authorities of District Sanghar , therefore, on a reference made by Forest Department, the , alleged allotment of the suit land was cancelled, but even then by misrepresentation and in collusion with the defendants Nos.3 and 6 ("the respondents Nos. 3 and 6"] without notice and hearing, illegal grants of the suit land were got regularized from the Member Board of Revenue. Hyderabad. The applicants exhausted the remedies before the hierarchy in Revenue Department, and then filed the subject suit with the following prayers:-- a) To grant Declaration that the suit land is the reserved land of Forest Department. b) To declare that the orders passed by the Member Board of Revenue (LC) Department regularizing the grant of suit land to the respondents/ defendants Nos.1 and 2 are based mala fide, mis-representation and fraud and on the back of the plaintiffs/appellants and are illegal, unlawful, void without jurisdiction of no legal effect and are in operative upen the rights of the Forest Department and or declared as cancelled. c) To grant Declaration that T.O. Form having been issued on the basis of illegal and fraudulent order are also void and of no legal effect and are declared as cancelled. d) Permanent injunction restraining the respondents/defendants Nos.1 and 2 from interfering into the peaceful possession of appellants/ plaintiffs and from alienating, transferring the suit land to anyone else and or mortgaging the same with Bank etc. may be granted.
3. On service of summons, the respondents Nos. 1, 2 and 7, filed their written statements, but the respondents Nos.3 to 6 despite service did not contes t the matter , therefore, they were proceeded against ex parte vide order dated 05.01.2006. Then the issues were framed and the matter was fixed for evide nce. Lastly the matter was fixed on 19.04.2010 when the Range Forest Officer submitted adjournment application, but it was dismissed and the suit was also dismissed for non-prosecution. The application under Order IX, Rule 9 of the code seeking restoration of the suit, was filed by the plaintif fs on 08.05.2010, which was also dismissed vide order dated 31.07.2010, passed by the learned Trial Court. The applicants preferred appal being Civil Miscellaneous Appeal No.16 of 2010. which has been dismissed by the learned Ilnd Additional District Judge Sanghar vide impugned order dated 14.04.2012.
Hence this revision application.
4. The learned Assistant Advocate General Sindh has mainly contended that the matter involves huge area of more than 22805-00 acres including the suit land Government Forest Land , which was illegally occupied by the respondents Nos. 1 and 2 and others in connivance of the staff of Revenue Depar tment, showing the grants of the said land in their names, showing the subject lands as non-forest land by foul and fraudulent means; that on 19.04.2010. the learned D.D.A was busy in several cases fixed before the other Courts, hence an application seeking adjournment was filed, but the learned Trial Court without considering the aforesaid aspects of the case, dismissed the adjournment application and also dismissed the subject suit for non-prosecution: that the application under Order IX, Rule 9, of the Code, filed by the applicants was within time, showing sufficient cause for non- appearance of Deputy District Attorney on the above date, but the learned Senior Civil Judge, Khipro, dismissed the said restoration application; that the learned Ilnd Additional District Judge Sanghar , also without considering the aforesaid aspects of the case dismissed the appeal of the applicants; that in view of the well settled law, the matters are always decided on merits rather than on technicalities and the parties are <given full opportunity to adduce their evidence for and against their respective claims and pleadings; and, that the orders passed by both the learned Courts below are illegal and against the principles of natural justice, which have caused miscarriage of justice to the applicants i.e. Province of Sindh and others. The learned A.A.G. prays for setting aside the impugned orders and remanding the case to the learned Trial Court for its decision on merits after allowing full opportunity to the parties to adduce their evidence pro and contra and so also providing opportunity of hearing to them.
5. Learned Advocate for respondent No.1 has mainly contended that the learned Trial Court had rightly dismissed the suit for non-prosecution as well as the application seeking restoration of the suit, per learned counsel, the plaintif fs i.e. Province of Sindh and others were avoiding to proceed with the matter ; and, that the learned Appellate Court has also rightly dismissed the appeal. The learned counsel prays for dismissal of instant Revision Application.
6. I have considered the submissions of the learned A.A.G. and the learned Advocate for the respondent No.1 and have gone through the material placed on record.
7. From a perusal of the record it would be seen that on 19.4.2010, the learned D.D.A. representing the applicants was allegedly busy in cases fixed before other Courts, hence the application seeking adjournment was moved on behalf of the applicants by the applicant No.2, who was present, but the learned Senior Civil Judge, Khipro, without asking him to come into the witness box for the purpose of evidence, had dismiss ed the adjournment application, dismissing also the subject suit involving the aforesaid huge area of the Government land claimed by the plaintif fs [Province of Sindh and others] to be the Government Forest Land, dealing with the matter in a very perfunctory and casual way and even the application seeking restoration of the suit filed well within time, was dismissed by the learned Senior Civil Judge, Khipro, witho ut any valid reason; the learned IInd Additional District Judge, Sanghar , also without applying his judicious mind and considering the aforesaid aspects of the case, dismissed Civil Miscellaneous Appeal No.16 of 2010, filed against the aforesaid orders of the learned Senior Civil Judge, Khipro.
It needs no reiteration that law favours adjudication on merits and dismissal for non prosecution should be an exception and not a rule and the Court must apply its conscious mind to the circumstances of each case while dismissing the suit for non prosecution and deciding the application seeking restoration of the matter . It is also well settled Law that litigant should not be deprived of decision on merits unless there has been something equivalent to misconduct and gross negligence on his/its part; where there is no finding of negligence against the plaintif f or the counsel the suit always be restored ; admittedly the Range Forest Officer, who was present, moved the application seeking adjournment on the ground that the learned DDA was busy before some other Courts in other cases fixed on that date, the suit ought not to have been dismissed for non- prosecution without asking the Forest Officer to come into the witness box for the purpose of evidence, more particularly , in view of the peculiar circumstances of the case involving the aforesaid huge area of the Government land, which adversely reflects upon the impugned orders. Under these circumstances, I am of the considered view that the learned Senior Civil Judge, Khipro, by dismissing the subject suit for non-prosecution and declining its restoration by dismissing the restoration application, filed within time, showing sufficient cause for non-appearance of DDA on the date of hearing; and, the learned IInd Additional District Judge, Sanghar , by dismissing Civil Miscellaneous Appeal, filed against such orders of the learned Senior Civil Judge, Khipro, have acted in the exercise of jurisdiction illegally and have also failed to exercise the jurisdiction vested in them. And, thus, the impugned orders dated 19.04.2010 and dated 31.7.2010, passed by the learned Senior Civil Judge. Khipro, and, order dated 14.04.2012, passed by the learned IInd Additional District Judge, Sanghar , are not sustainable and are liable to be set-aside.
8. These are the reasons of short order announced by me on 24.4.2019 whereby the instant Civil Revision Application was allowed and the aforesaid orders of both the learned Courts below were set-aside and the case was remanded to the learned Trial Court for its decision on merits. Consequently , the subject suit stood restored to its original position, which shall be decided after providing full opportunity to the parties to adduce evidence for and against their respective claims and pleadings and so also by providing full opportunity of hearing to them.