' The facts leading to the filing of the present revision application are that Suit No,5580 of 1981 was pending in the Court of IIIrd Senior Civil Judge, Karachi South, and when it came up before the Court on 31-3-1990 it was found that both the parties were absent in spite of their service by affixation and the learned Senior Civil Judge, after observing that notice had been issued to the plaintiff a number of times but none of the parties was appearing in the Court, dismissed the suit.
Since both the parties were absent on this date, the dismissal was evidently under Order 9, Rule 3, C.P.C., that is why the plaintiff/respondent moved restoration application under Order 9, Rule 3, C.P.C. On 11-11-1990, after the lapse of nearly eight and a half months. This restoration application was, however, dismissed by learned Senior Civil Judge vide order, dated 3rd April, 1991. The respondent/appellant went to appeal under Order 43, Rule 1 read with section 104 of C.P.C. Before the District Judge, Karachi South who, was pleased to accept the same vide order, dated 26-10- 1991. It is this order which is impugned in this revision application. Learned counsel for the applicants has assailed the impugned order both on the points of law as well as on facts. It was urged before me that the order passed by the learned trial Court on the restoration was not appealable and, therefore, the appeal filed by the respondent before the learned District Judge, Karachi South, was not maintainable and, therefore, the impugned order, dated 26-10-1991 is an order without jurisdiction and, therefore, nullity in the eye of law. On facts, it was argued that restoration application, besides being barred by time was also liable to be dismissed as no sufficient grounds have been shown for the restoration of the suit. Learned counsel of the respondent conceded to the position that an order passed under Order 9, Rule 4, C.P.C. Is not appealable but he claimed that the order, dated 3-4-1991 should be deemed to be an order under Order 9, Rule 8, C.P.C. Or in the alternative, civil miscellaneous appeal filed by the plaintiff under Order 43, Rule 1 read with section 104, C.P.C. (Civil Misc. Appeal No,43 of 1991), may be treated as a revision application.
2. I have given considerable thought to the submission of learned counsel of the parties. It is impossible to agree with the learned counsel for the respondent that Civil Misc. Appeal No,43 of 1991 should be deemed to be revision application or that the order dated 3-4-1991 should be treated as an order passed under Order 9, Rule 8, C.P.C. Perusal of the order, dated 31-3-1990 (Annexure "D") clearly shows that both the parties were absent on this date. It was, therefore, without any shadow of doubt, an order under Order 9, Rule 3, C.P.C. Learned Senior Civil Judge did not mention in the order the provision of law under which it was passed. However, the contents of the order itself are enough to show under what provision it had been passed. Besides, even though the order dated 31-3-1990 did not refer to the provision of law under which it was passed, the respondent/plaintiff moved the restoration application (Annexure "E") not under Order 9, Rule 9, C.P.C. But under Order 9, rule 4, C.P.C. Which shows that the respondent/plaintiff herself considered that the order, dated 31-3-1990 was passed under Order 9, Rule 3, C.P.C. It being an admitted position that an order passed under Order 9, Rule 4, C.P.C. Is not appealable under Order 43, Rule 1, C.P.C., there can be no two opinions that Civil Misc. Appeal No,43 of 1991 was not maintainable and, therefore, the impugned order, dated 26-10-1991 whereby the said appeal was allowed cannot be sustained.
3. I also note that the restoration application (Annexure 'E') was moved after nearly 8 and a half months of the dismissal of the suit and there is no merit in the claim of the respondent/plaintiff that she or her counsel was not properly served after the remand of the case from the High Court. I agree with the learned counsel for the applicants that, strictly speaking, there was no question of the remand of the case because, although applicant Mst. Roshan Jehan had filed Civil Revision Petitions Nos.25 and 26 of 1988 in the High Court but the same were not admitted for regular hearing and were dismissed in limine vide order, dated 8-5-1988 and in the meantime, i,e,, between the period of filing these revision petitions and their dismissal, the suit continued to proceed in the trial Court and the R&P was never called by this Court. As such, the question of notice did not arise. If the learned trial Court issued notices to the parties it was evidently out of abundant caution. Under the circumstances learned trial Court rightly held on 31-3-1990 that the service of the parties was sufficient. As such, the period of limitation for purposes of filing application under Order 9, Rule 4, C.P.C. (Annexure "E") would run B from 31-3-1990. As such, restoration application was clearly barred by time and was, therefore, rightly dismissed by the learned trial Court vide order, dated 3-4-1991. I see no reason why, under these circumstances Civil Misc. Appeal No,43 of 1991 should be considered as a revision application when the applicants/plaintiffs did not themselves treat it as such. I have gone through the impugned order, dated 26-10-1991. The ground on which this order was passed appeared to be the conviction of the learned District Judge that every case should be decided on merits rather than on technicalities.
No doubt, the spirit of law is that every case should be decided on merits but if a party makes it impossible for the Court to decide a case on merits, then the Court obviously cannot help deciding it in accordance with law, even though such decision may not be on merits and on technicalities of the law of limitation. I am, therefore, of the view that the impugned order dated 26-10-1991 was passed in violation of the law as well as against the facts. To be brief, the impugned order is bad in law in that the appeal itself was not maintainable before the learned District C Judge and, secondly, even if the appeal were held to be maintainable under Order 43, Rule 1, C.P.C., it was barred by time and, thirdly, even if these considerations of law are ignored, the respondent/plaintiff failed to show any good cause for restoration of the suit as absence of the plaintiff/applicant cannot at all be justified for the reasons already indicated above. In view of this position, I would accept this revision application and set aside the impugned order, dated 26-10-1991 with the result that the restoration application moved by the applicants/plaintiffs before the trial Court stands dismissed. The parties are left to bear their own costs.