1. ' AZIZ-UR-REHMAN, J.---Granted for the time being subject to all just exceptions.
2. 2-3). Through this Civil Revision Application [In short R.A.], the applicant besides, Order dated 4-5- 2010 and 25-5-2010 passed by Ist Senior Civil Judge, Karachi East has also assailed Order dated 16- 3-2011 and Order dated 29-5-2012 passed by learned Vth Addl. District Judge, Karachi East, ' Mr. Faqeer Ghazi Darban Hisbani, learned counsel for the applicant vehemently contended that the present applicant had filed Civil Suit bearing No,591 of 2002 [Syed Altaf Hussain v. Irshad Ahmed and 9 others] for possession, mesne profits, permanent and mandatory injunction.
3. ' Upon service, all the defendants [respondents herein] filed their written statement wherein, no doubt, the averments made in the plaint were denied. Notwithstanding, the controversial pleas raised by the parties, the plaintiffs suit was dismissed for 'non-prosecution'. Per learned counsel, on 4-5-2010 [Annexure 'B' at page 69], when the case was called, learned counsel for the defendants was present. However, the plaintiff and learned counsel for the plaintiff were not in attendance.
4. Resultantly the suit was dismissed for 'non-prosecution' .
5. ' Being relevant order dated 4-5-2010 is reproduced here-in- below:-- C.S. No,591/2002 4-5-2010 ' Matter is called. Advocate for defendants is present. The plaintiff and his advocate are not attending the court since last date of hearing viz. 28-4-2010. The show-cause was also given the witness of CDGK. Agha Munir A.D.D.O. F-II Land Department CDGK, who appeared, given application for his excuse of his recalling show cause. His evidence is record, who gave statement that record is not available to their department. He produced receipt of In-Charge of record room of KDA. On 22-4-2010 this court also received report from the Honorable District and Sessions Judge, Karachi South that surety documents are not lying in their office, which was claimed by the plaintiff that documents are lying in Nazir office of District South in Session Case No,623/06. In these circumstances, the suit of the plaintiff is dismissed in non-prosecution. There is no order as to any cost."
6. ' Per learned counsel on the aforesaid date the case was fixed for hearing of application/some other purpose and not for evidence of the plaintiff and/or plaintiffs witnesses. On dismissal of the suit for 'non-prosecution' the present applicant promptly moved an application under Order IX, Rule 9, C.P.C. Read with section 151 C.P.C. Praying therein for recalling and setting aside of the order dated 4-5-2010 whereby the applicant's suit was dismissed for 'non-prosecution'.
7. ' The application under Order IX Rule 9 C.P.C. Read with section 151, C.P.C. Was duly supported with affidavit of the applicant/ plaintiff s counsel viz. Mr. Arshad Jamal Siddiqui. The relevant paras of supporting affidavit are reproduced as under:-- "(2) That I say that the present matter was fixed for further proceedings on the last date of hearing in respect of application moved on behalf of the plaintiff under. Order XVI, R.I, C. P.C. Read with Order XIII, R.10, C.P.C.
(3) That I say that due to bona fide slip, I noted the next date of hearing as 5-5-2010 instead of 4- 5-2010, therefore, due to my non-attendance, the present matter was dismissed for non- prosecution.
(4) That I say that my non-appearance on 4-5-2010 in the present matter was neither deliberate nor intentional but due to the bona fide slip as explained above.
(5) That I say that under the circumstances, grant of accompanying application as prayed will meet the ends of justice else the plaintiff would be put to grave harm and irreparable loss for no fault of him.
8. ' Mr. Faqeer Ghazi Darban Hisbani, learned counsel for the applicant [plaintiff], further argued that 'no notice' on the application under Order IX Rule 9 C.P.C. Read with section 151 C.P.C. Was issued to the respondents [defendants]. Per learned counsel without any denial/ rebuttal of the contents of the application under Order IX, Rule 9, C.P.C. Read with section 151, C.P.C. And its 'supporting affidavit', the learned Ist Senior Civil Judge, Karachi East, without applying judicial minds dismissed the aforesaid application. Even otherwise, sufficient cause for non-appearance was shown.
9. Learned counsel for the applicant forcefully contended that such application should have been granted and consequently the suit by the applicant [plaintiff] ought to have been restored to its 'original position'. Nonetheless, the application under Order IX, Rule 9, C.P.C. Read with section 151, C.P.C. Was dismissed on 25-5-2010. [Annexure 'D' at page 73 to R.A.] and plaintiff was put out of court without issuing any intimation notice to the plaintiff directly. The relevant part of order dated 25-5-2010 reads as under:-- "The advocate for plaintiff has not taken plausible grounds to recall the order dated 4-5-2010, whereas at the time of passing order of non-presentation undersigned has already discussed each and every point which show that suit of plaintiff is not prima facie. This court has rightly passed order and dismissed the suit in non presentation on 4-5-2010, hence present application is hereby dismissed with no order as to cost."
10. ' Aggrieved by such order of 25-5-2010 the same was challenged in Civil Miscellaneous Appeal No,35/2010 [Syed Altaf Hussain v. Irshad Ahmed and 9 others]. However, the said appeal was also dismissed vide order dated 16-3-2011 [Annexure 'F' at page 95 to R.A.] on the ground of non- compliance of Rule 3 of Order XLIII, C.P.C.. The operative part of order dated 16-3-2011 reads as follows : "On pursuant of the record, it manifest that the instant CMA is filed Under Order XLIII Rule 1(c) C.P.C., as impugned order was passed by the learned trial court as enumerated in section 104, C.P.C., however, it is mandatory upon the appellant shall give notice to the respondent or his advocate by delivering a copy of the memorandum and grounds of appeal along with a copy of the order appealed against and obtained an acknowledgment of receipt thereof for the information of the appellate court as provided under Rule 3 of Order XLIII, C.P.C., which is lacking in this appeal. It is settled law that appeal not complying with the provisions of Rule 3 of Order XLIII, C.P.C. Should not be entertained. In such circumstances, the CMA in hand stands dismissed as not maintainable."
11. [Underlining is mine] .
12. ' Feeling aggrieved the applicant [plaintiff] thereafter filed Review Application under Order XLVII, Rule 1, C.P.C. For review of order dated 16-3-2011 but the same was also dismissed on 29-5-2012 [Annexure 'H' at pg 111 to R.A.]. The operative part of the order reads as follows:-- "It is a matter of record that applicant instead of preferring to challenge the order dated 16-3-2011 before proper forum he preferred to file review application which is not maintainable before this forum. Even otherwise learned counsel for the applicant did not bring any cogent material to be reviewed by this court. It is also matter of record that impugned order is quite clear and three is no ambiguity and the same is based on sound reasoning. Therefore, in such circumstances, I am of humble view that the impugned order passed by my learned predecessor call no interference and the same is maintained. Accordingly the review application in hand is disposed off accordingly."
13. ' Learned counsel for the applicant vehemently argued, of course, with some justification that respondents [defendants] in no event, could be prejudiced and/or denied their legal rights if any, in case the suit of the plaintiff is restored to its 'Original Position' and thereafter is decided purely on merits.
14. ' Per learned counsel on the crucial date i,e, 4-5-2010, the suit was not fixed for 'evidence of the applicant [plaintiff]' rather it was fixed for hearing of application and/or appearance of ADDO viz. Agha Munir of CDGK in response to 'show cause notice' issued to him. As such, the dismissal of the suit for ' non prosecution' by taking a harsh view by the courts below is unjust an unlawful.
15. ' On the other hand learned counsel for respondents Nos.1 to 7 supported the impugned orders but had nothing concrete/cogent with him to oppose the impugned orders.
16. ' Mr. Muhammad Ghalib, learned counsel for respondents [defendants] primarily founded his defence on the plea that the applicant [plaintiff] had been negligent and pursuing his case. As far as the facts leading to the dismissal of the suit. For 'non-prosecution' are concerned, the same are not in contention. The factum of 'non-issuance of notice' on the application for restoration of the suit as well as absence of any rebuttal and/or denial of the contents thereof and its supporting affidavit is also not in dispute.
17. ' However, he forcefully argued that the instant revision ' application is devoid of any merits thus liable to be dismissed with cost.
18. ' Heard learned counsel for the parties and also scanned the record available before me with their valuable assistance.
19. ' It is admitted position that on the pivotal date i,e, 4-5-2010, the suit was neither fixed for evidence of the plaintiff and/or plaintiff's witnesses rather it was fixed for attendance of Agha Munir ADDO R- II, Land Department, CDGK who indeed had appeared pursuant to 'show cause notice' issued to him on 28-4-2010. From perusal of order dated 4-5-2010 it transpires that the said officer on appearance had also filed an application for recalling/vacating the 'show cause notice' to him on 28-4-2010. The learned Sr. Civil Judge, Karachi East, without recalling/ vacating the 'show cause notice' recorded his evidence. Relevant part of the order dated 4-5-2010 is reproduced herein below:-- "The show-cause was also given the witness of CDGK. Agha Munir A.D.D.O. F-II Land Department CDGK, who appeared, given application for his excuse of his recalling show cause. His evidence is record, who gave statement that record is not available to their department. He produced receipt of In-Charge of record room of KDA. On 22-4-2010 this court also received report from the Honorable District and Sessions Judge, Karachi South that surety documents are not lying in their office, which was claimed by the plaintiff that documents are lying in Nazir office of District South in Session Case No,623 of 2006. In these circumstances, the suit of the plaintiff is dismissed in non- prosecution. There is no order as to any cost." [Underlining is mine].
20. ' Bare perusal of order dated 4-5-2010 would show that the plaintiff suit was wrongly dismissed. It appears from order dated 4-5-2010 that the learned Sr. Civil Judge Karachi, East without properly appreciating the situation before him hurriedly dismissed the suit filed by the applicant [plaintiff] without affording sufficient opportunities. Non-appearance of the counsel and/or plaintiff on the eventful date i,e, 4-5-2010 weighed heavily with the learned Sr. Civil Judge Karachi East and contributed towards the dismissal of the suit for 'non prosecution' filed by the applicant [plaintiff].
21. Under the peculiar circumstances of the case, I am of the considered view that the very basic order of 4-5-2010 is void ab initio and thus liable to set aside.
22. ' Besides, application under Order IX, Rule 9 read with section 151, C.P.C. Was dismissed without applying judicial mind. For better understanding it would be advantageous to reproduce herein provision of Order 9, Rule 9, C.P.C. Which reads as follows:-- "9. (I) Where a suit is wholly or partly dismissed under Rule 8 the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non- appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party." [Underlining is mine].
23. Per Order IX, Rule 9(2), C.P.C., no order on an application under Order IX, Rule 9, C.P.C. Could be passed unless opposite party is put on notice of the application under Order IX, Rule 9, C.P.C.
24. Significantly, in the case in hand the learned Sr. Civil Judge, Karachi A East dismissed the application under Order IX, Rule 9, C.P.C. Abruptly and without issuing notice to the respondents [defendants]. Order dated 25-5-2010 besides erroneous, illegal is without jurisdiction and lawful authority.
25. ' Moreover, keeping in view the long-drawn and chequered history of the case, the learned appellate court in a swept and suo Motu manner on 16-3-2011 at 10-45 a.m. Dismissed the Civil Miscellaneous Appeal under Order XLIII, Rule 1, Civil Procedure Code [Act V of 1908] for want of compliance of Order XLIII, Rule 3, C.P.C. Being relevant Order 43, Rule 3, C.P.C. Is reproduced herein below:-- "3.---(1) Where an appeal against an order is preferred during the pendency of a suit the appellant shall before presenting the appeal give notice of such appeal to the respondent or his advocate by delivering a copy of the memorandum and grounds of appeal along with a copy of the order appealed against [either personally or through registered post acknowledgement due and the postal or other receipt shall be filed with the memorandum of appeal for the record of the appellate Court].
(2) On receipt of notice referred to in sub-rule (1) the respondent may with the permission of the Court appear before it and contest the appeal and may be awarded costs on dismissal of the appeal in limine." [Underlining is mine].
26. From bare perusal of Order XLIII, Rule 3, C.P.C. It crystal clear that issuance of notice is only required to be given when an order passed is challenged through an appeal during pendency of the suit.
27. Rule 3 of Order XLIII, C.P.C., I am of the opinion, is not applicable in the instant case as appeal was not filed during the pendency of the suit, rather it commenced from the dismissal of the suit for 'non-prosecution' on 4-5-2010.
28. Even otherwise, no material prejudice was caused to the opposite party/respondents herein from such irregularity, if any. None service of notice, indeed, by itself is not consequential and harmful.
29. Strict technical compliance is not 'absolute requirement of law' particularly when preadmission notice as being practiced now-a-days is also issued by courts of law to the opposite party. On this score also the impugned order is not sustainable.
30. ' In this regard reliance is placed on the case of Abdul Lateef v. Muhammad Yousuf and 2 others [PLD 1996 Karachi 365] wherein it was I observed as follows:-- "Since, I am of the considered view that the trial Court should have restored the plaintiff's suit to its original number, the objection that provision of notice as required under Order XLIII, Rule 3, C.P.C.
31. Was not complied with and that the appeal was liable to be dismissed, does not require consideration, as I am inclined to hold that the initial order of the learned Senior Civil Judge, Shandadpur is not sustainable in law. Facts and circumstances of this case fully attract interference of this Court and 1 do not see any reason not to interfere as both the two Courts below have failed to consider the real controversy involved and have based their Judgments on mere technicalities. Result of the above discussion is that this Revision Application is accepted and both the orders of the learned subordinate Courts are set aside. Suit of the plaintiff bearing No,F.C. 22 of 1983 is restored to its original number. I am also mindful of fact that the original suit is pending since 1983, as such, learned trial Court is directed to expeditiously proceed with the suit and to complete the proceedings within next six months after receipt of his order." [Underlining is mine].
32. ' Apart from the above, after incorporation of Article 10-A in the Constitution of Islamic Republic of Pakistan, 1973 [through 18th Amdt] the situation has been further changed. For ready reference Article 10-A is reproduced herein below:-- "10A. Right to fair trial.---For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.] "
33. ' Significantly, after incorporation of Article 10-A in the Constitution of Islamic Republic of Pakistan, 1973 a 'fair trial' and ;'due process', of course, now is a fundamental right of every citizen/litigant person. Any order passed in proceedings held in violation of 'fair trial' and 'due process' is 'null' and 'void'. In this regard reliance can be placed on the case of Babar Hussain Shah and another v.
34. Mujeeb Ahmed Khan and another [Reported in 2012 SCM R 1235 (1241)]:-- "11 Although from the very inception the concept of fair trial and due process has always been the golden principles of administration of justice but after incorporation of Article 10-A in the Constitution of the Islamic Republic of Pakistan, 1973 vide 18th Amendment, it has become more important that due process should be adopted for conducting a fair trial and order passed in violation of due process may be considered to be void. In a very old judgment of this Court reported as Collector, Sahiwal and 2 others v. Muhammad Akhtar (1971 SCMR 681)", this Court went on to hold as under:- "This Court has gone to the extent of pointing out that the mere absence of a provision in a statute as to notice cannot override the principle of natural justice that an order affecting the rights of a party cannot be passed without an opportunity of hearing and also held that where the giving of a notice is a necessary condition for the proper exercise of jurisdiction then failure to comply with this requirement renders the order void and the entire proceedings which follow also become illegal." [Underlining is mine].
35. ' As far as 'due process' is concerned, in the case of Shabbir Ahmed v. Kiran Khursheed and others [2012 CLC 1236] a learned Single Judge of Lahore High Court while, dilating upon Article 10-A observed under:-- "26 The impugned auction also offends the newly incorporated fundamental right under Article 10- A of the Constitution, which mandates that civil rights and obligations of the petitioners can only be determined through fair trial and due process. Article 10-A, morphs Article 4 into a more robust fundamental right, covering both substantive and procedural due process. While substantive due process provides a check on legislation and ensures the protection of freedoms guaranteed to a person under the Constitution, procedural due process, which concerns me here, provides that "each person shall be accorded certain "process" if they are deprived of life, liberty or property ....The question then focuses on the nature of the "process" that is "due."... The government always has the obligation of providing a neutral decision maker one who is not inherently biased against the individual or who has personal interest in the outcome. " Due process is now available to every person as a fundamental right and underscores procedural fairness and propriety in determining his civil or criminal rights. The procedure adopted in determining the rights of the parties must at every step pass the test of fairness and procedural propriety and at all times must honour the law and the settled legal principles.15 Article 10-A is not limited to a judicial trial in its strict sense but requires fairness from any forum which determines the rights of a person. In this case the haughty indifference of TMA to ignore the petitioners and their existing tenancy and to smugly proceed directly with auction of the lease hold right does not pass the test of fairness or due process under Article 10-A." [Underlining is mine].
36. ' Likewise, in the case of Altaf Hussain v. Arifa Farooqi and 7 others [PLD 2013 Lahore 95]. It was observed as follows:-- "18 ... ....In proceeding in the above regrettable manner the learned Additional Rent Controller has denied an opportunity of a fair trial and due process to the appellants. The entitlement to a fair trial and due process is now a fundamental right after insertion of Article 10-A in the Constitution of the Islamic Republic of Pakistan, 1973, through the 18th Amendment. Courts are, therefore, required under the Constitution to ensure that parties receive a fair trial and due process is adhered to." [Underlining is mine].
37. ' Keeping in view above, Orders passed by the courts below are patently illegal, perverse and unjust. The appellate court as well besides having failed to apply the judicial mind, correct law dismissed the applicant's appeal without hearing him in an arbitrary and fanciful manner. The impugned orders are thus liable to be set aside.
38. ' For the foregoing reasons I am of the considered view that the suit filed by the applicant [plaintiff] should not have been dismissed for 'non-prosecution' rather numerous fair opportunities should have been afforded to the plaintiff for arriving at a decision on merits, of course, strictly in accordance with law.
39. ' Result of the above discussion is that the Revision Application is allowed. The impugned Orders are hereby set-aside and the plaintiff's suit dismissed on 4-5-2010 for 'non-prosecution' is restored to its original position.
40. ' Parties are directed to appear before concerned court on 26-11-2013 without further notice. It is further directed that learned trial court shall endeavor to decide the suit expeditiously.
41. ' The instant Revision Application along with pending applications stands disposed of. There is no order as to costs.