KHALID PAUL KHWAJA, J.--The relevant facts which gave rise to the present writ petition are that on 10-10-1983 Muhammad Azam etc respondents instituted a suit for a declaration to the effect that they were the owners in possession of the suit land measuring 341 Kanals situate in village Jore Skaser, District Sargodha and that the gift deed dated 6-11-1974 and sale. Deed dated 7-11- 1974 were the result of misrepresentation and fraud and thus were not effective , against their rights. By way of consequential relief they sought issuance of permanent injunction to restrain Elahi Bakhsh etc, petitioners herein, from interfering with their possession over the said land. The petitioners contested the suit setting up the plea that they were the bonafide purchasers of the suit land for a price of Rs. 2,85,000/-and were also in possession of the same. On the pleadings of the parties issues were framed and the parties were directed to produce their evidence. Several opportunities were afforded to the respondents for the production of their evidence but they failed to produce any. Finally on 28-2-1988, when the case was fixed for their evidence, they and their counsel absented themselves as a result of which the learned trial court dismissed the suit under Order IX rule 8 read with Order XVII rule 2 CPC. Feeling aggrieved, on 5-3- 1989, the respondents filed a revision petition to question the correctness of the order of the dismissal of their suit. The learned Additional District Judge, who was seized of the matter, accepted the revision petition vide order dated 4-6-1989 as a result of which the order dated 28-2-1988 was set. Aside and the case was remanded for trial in accordance with the law. The petitioners have challenged the validity of the said order in this writ petition.
2. I have heard the parties learned counsel and have also gone through the material available on record.
3. Learned counsel for the petitioners has submitted that the revision petition instituted by the respondents was not competent insofar as the impugned order dated 28.2.1988 was passed by a competent court, that the petitioners had failed to show or even allege that the said court had exercised jurisdiction not vested in it or had not exercised jurisdiction vested in it or that the jurisdiction had been exercised illegally or with material irregularity. On the other hand, it was submitted on behalf of the respondents that the case was not adjourned to 28.2.1988 on the request of the respondents and therefore, the suit could not have been dismissed either under Order IX rule 8 or under Order XVII rule 2 CPC and that as the impugned order dated 28.2.1988 was a void order revision under Section 115 CPC was competent.
4. Elaborating his submission learned counsel for the respondents Contended that on 27.1.1988 the suit was adjourned to 8.2.1988, that the same was not laid down before any court on the said date but was put up before the learned Senior Civil Judge on 18.2.1988 which was not a date fixed by the court and that from 18.2.1988 the case was adjourned to 28.2.1988 in routine by the court and not on the request of the respondents and therefore, the suit could not be dismissed on the said adjourned date.
5. Persual of the photostat copy of the order sheet reveals that on 27.1.1988 the following order was passed by the trial court: {{URDU TEXT MISSING}} On 18.2.1988 the following order was passed by the learned Senior Civil Judge, Sargodha: "Present: Counsel for the parties.
Order. Suit has received in this court by way of transfer today. Let it be registered in the register of civil suits. Suit is more than 3 years' old, therefore, is adjourned to 28.2.1988 for the evidence of the plaintiff. No further opportunity will be granted.
Sd/- Senior Civil Judge"
Announced 18.2.1988 On 28.2.1988 the following orders were passed: {{URDU TEXT MISSING}} Time: 3.50 p.m Again and again called for.
Present: Counsel for the defendant.
None on behalf of plaintiff.
Order. Inspite of repeated calls evidence of the plaintiff is also not present. Suit stands dismissed under Order IX rule 8 read with Order 17 (2) of the CPC with no order as to costs. File to be consigned to the judicial record room.
Sd/- Senior Civil Judge."
Announced 28.2.1988.
6. Learned counsel for the respondents has laid much stress on his assertion that 18.2.1988 was not a date fixed in the suit and that his clients had no notice of it. He submitted that any order passed on 18.2.1988, therefore, was illegal and void and that any subsequent orders passed in the suit would also be Considered to be illegal and void. This was the only illegality which was pointed out in the order dated 28.2.1988.1 am afraid the contention raised on behalf of the respondents in this court is without any substance and thus not tenable. Perusal of the revision petition in question clearly shows that the respondents had admitted that from 27.1.1988 the suit was adjourned to 18.2.1988 and not to 8,2.1988 as it is now being asserted. In fact there is no mention of 8.2.1988 as a date of hearing. In this view of the matter it does not lie in their mouth now to say that 18.2.1988 was not a date fixed in the suit. I have seen the relevant portion of the photostat copy of the order sheet which shows that in the order dated 27.1.1988 the next date is given as 8.2.1988 but I am of the opinion that figure 1 of figure 18 had somehow been omitted due to mechanical defect because the respondents in their revision petition would not have admitted 18.2.1988 as the date of hearing if the actual date was 8.2.1988. The contention which the respondents are raising now is an after thought and perhaps the result of defective photostat copy of the order sheet. Be that as it may, the record clearly shows that on 18.2.1988 the respondents alongwith the petitioners were present through their counsel before the learned trial court i.e Senior Civil Judge, Sargodha to whom the suit had been entrusted for disposal. Under Article 129 of the Qanun-e-Shahadat Order 1984 presumption of truth is attached to the order dated 18.2.1988 and it will be presumed that the respondents were present ^before the trial court on the said date. No doubt this presumption is rebuttable but the 'respondents have not made any effort to dislodge the said presumption by submitting any affidavit in support of their assertion that they had no notice of any such date. From the material available on record it is thus fully established to my satisfaction that the respondents (plaintiffs) were present before the learned trial court on 18.2.1988 and in their presence the suit was adjourned to 28.2.1988 for the production of their evidence and on the said date they failed to appear and their suit was dismissed. The learned trial court was fully competent to pass such an order under Order IX rule 8 CPC read with Order XVII rule 2. The illegality which the respondents have pointed out in the said order is no illegality at all. The following portion of the revision edition sneaks volume about the absurdity of the respondents' argument: {{URDU TEXT MISSING}}
7. I am therefore of the firm opinion that the order dated 28.2.1988 did not suffer from any illegality and the learned Addl. District Judge could not have interfered with it and set it aside in exercise of revisional jurisdiction. Further, the said order of the trial court could not be set aside merely on the ground that technicalities should not be allowed to defeat substantial justice. Cases which come to the courts of law are required to be disposed of in accordance with the law. It is true that while disposing of such case technicalities should not be allowed to defeat substantial justice but at the same time parties should not be allowed to flout law or make a mockery of it. In the present case the respondents did not have any justification for their absence before the trial Court on 28.2.1988 when their suit was dismissed. They slept over for full one year and then one fine morning sauntered into the District Court with a revision petition in hand to have the order of the dismissal of their suit set aside so that they could resume legal proceedings to drag the petitioners into the torturous litigation which was hanging fire for the last about five, years without any visible progress.
They did not choose to go to the trial court within an application under Order IX Rule 9 CPC for the restoration of the suit because there they could have been asked to show sufficient cause for their absence which probably they could not have shown. Their conduct which outrightly lacked bonafides did not entitle them to any indulgence. Ordering the restoration of their suit amounted to allowing them to prosecute their suit n6t in accordance with the law but in accordance with their sweet will and convenience. The impugned order of the learned Addl. District Judge, therefore, was blatantly opposed to law, arbitrary and unsustainable.
8. The respondent's suit was dismissed for non-prosecution on 28.2.1988. To challenge the validity of the said order of dismissal they filed a revision petition in the District Court on 5.3.1989 i.e After about a year. It has been laid down in Manager. Jammu and Kashmir. State Property in Pakistan Vs. Khuda Yar and another (PLD 1975 S.C 678) that a revision petition under Section 115 CPC has to be filed within the unprescribed period of 90 days and if the same was filed beyond the said period the delay had to be satisfactorily explained. The law laid down by the Supreme Court in this case has been followed in Muhammad Ayub and 9 others Vs. Zarif Khan and 2 others (1988 CLC 33 (Peshawar), Ch. Maqsood Ahmad Vs. Khalid Pervaiz (1990 CLC 1536 (Lahore) and Akbar Khan Vs. Muhammad Khan (1990 CLC 1828 (Lahore). In this view the revision petition filed by the respondents before the-District Court was hopelessly barred by time. They did not file any petition under Section 5 of the Limitation Act for the condonation of the said delay nor did they explain the said delay in the revision petition. Even before this court they failed to explain such delay. I, therefore, have no hesitation in holding that the revision petition before the learned District Court was hopelessly barred by time and liable to be dismissed. Learned Addl. District Judge, while disposing of the revision petition, relied on PLD 1964 S.C. 97 to dispose of the objection about limitation. He conveniently ignored the latest law on the subject contained in PLD 1975 S.C. 678 and thus acted illegally.
9. Learned counsel for the respondents maintained that the impugned order passed by the learned Addl. District Judge in exercise of revisional jurisdiction could not be challenged in writ jurisdiction as the revisional court had jurisdiction to decide the matter rightly or wrongly and the mere fact that decision of the said court on a question of fact or law was not correct did not necessarily render it without lawful authority. In this regard he relied on Abdur Rehman Bajwa Vs. Sultan and 9 others (PLD 1981 S.C 522), Hamayat Khan and another Vs. Ahmad Din and 2 others (NLR 1982 S.C J.
534 (2) and Noor Muhammad Vs. Sarwar Khan and 2 others (PLD 1985 S.C 131). On the other hand relying on Muhammad Zahoor and another Vs. Lal Muhammad and 2 others (1988 S.C.M.R 322) the learned counsel for the petitioners maintained that High Court in exercise of its constitutional jurisdiction could examine the validity the final orders passed by Civil Courts if they were wholly void or coram non judice. Their Lordships have observed at page 326 of the judgment: "A bare perusal of Sub-Article (5) of Article 199 of the Constitution of Pakistan makes it plain that the constitutional jurisdiction of the High Court extends to reviewing the orders of a court or Tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan. We are, therefore, not in a position to lay down the wide proposition that the constitutional jurisdiction of the High Court is not at all invokable in respect of an order passed by a Civil Court. In saying so we do not in the least mean to water down the general observations made in the aforesaid decisions discouraging vexatious and incompetent constitutional petitions filed against final orders passed by the Civil Courts within the ambit of their jurisdiction unless the order is wholly void or coram non-judice."
In the present case it would be seen that the impugned order by the learned Addl. District Judge was passed in total disregard of the statutory law and the law laid down by the superior courts and the trial Court's order had been set aside arbitrarily and fancifully. In this view of the matter I am of the opinion that the learned Addl. District Judge had acted without lawful authority in setting aside order dated 28.2.1988 passed by the trial court. The impugned order therefore was not only void but coram non judice. The present writ petition, therefore, is quite competent.
10. The upshot of the above discussion is that the impugned order is liable to be set aside as the same has been found to be without lawful authority void and without legal effect. Consequently this writ petition is accepted, the impugned order is set aside and the order of the learned trial court dated 28.2.1988 is restored. The respondents shall bear the costs of the suit throughout.