' SAJJAD ALI SHAH, J.---This appeal with leave of the Court is directed against judgment dated 18- 2-1992 of the High Court of Sindh, Karachi, whereby Civil Revision Application No,241 of 1990 filed by the appellants herein is dismissed and in consequence decree for possession of house and manse profits against them is maintained.
2. Briefly stated the relevant facts giving rise to this appeal are that respondents herein namely Nasim Ahsan and others filed Suit No,1897 of 1980 in the Court of 1st Senior Civil Judge, Karachi (Central) against appellants under section 9 of the Specific Relief Act for recovery of possession of House No,1- H-9/23, Nazimabad, Karachi. It is averred in the plaint that deceased Zahid Hussain was exclusive owner of the house in dispute in which he was living with his mother Mst. Saghir Khatoon and with plaintiffs/respondents. Deceased also used to run .Dawalchana in part of the said house. After the death of Zahid Hussain living arrangement in the house as stated above, continued and Nasim Ahsan plaintiff/respondent No,1 constructed in that house one room, kitchen and latrine at the cost of Rs,25000. After the death of mother of Zahid Hussain, plaintiffs/respondents continued living in the said house and on 8-11-1979 in their absence defendants/appellants illegally and unauthorized occupied the said house by breaking open the lock and thereby dispossessed plaintiffs in the suit. In the plaint Mst. Bilquis (defendant No,1) was not recognised as wife of Zahid Hussain. In such circumstances suit as mentioned above, was filed.
In the written statement allegations were denied and Mst. Bilquis proclaimed that she was legally wedded wife of Zahid Hussain and defendants Nos.2 to 4 are her children from said wedlock. She further claimed that after death of Zahid Hussain, property in dispute devolved upon them as legal heirs of deceased. She supported her claim with documents including death certificate, photographs, heir ship certificate and certificates of the children showing parentage. It was denied that plaintiffs were legal heirs of Zahid Hussain and were in actual physical or constructive possession of the house in dispute.
3. In the Trial Court after filing of written statement, issues were settled and case was adjourned for recording of evidence. It appears that on 16-7-1988 and 23-7-1989 plaintiffs examined Nasim Ahsan and Muhammad Ali respectively without cross-examination on behalf of defendants in the suit for the reason that on both' these occasions neither they nor their counsel were present. On the latter date plaintiffs in the suit closed their side and later side of defendants was also closed. On 9- 10-1989 application was filed by defendants in the suit for setting aside the order of closing their side and it was prayed that they should be allowed to cross-examine plaintiffs who were examined earlier in their absence. Said application was supported by affidavit of Mst. Bilquis with reasons stated therein.
4. Application was dismissed by the Trial Court vide order dated 20-5-1990 rejecting contentions of defendants in the suit on the following grounds. Firstly Mst. Bisques was unable to substantiate her claim that after the death of her advocate Mr. Mukhtiar Ali Rehmani, she kept on going to his office which was locked and, therefore, she lost track with the case. Secondly, revision application of defendants arising from the suit was dismissed for lion-prosecution in the year 1985, when their advocate died in 1986 hence her explanation was not satisfactory. Thirdly, after transfer of the case, it is not necessary to issue Court motion notice to the parties. Revision application was filed in the High Court which is dismissed by the judgment impugned before us.
5. It appears from the perusal of the impugned judgment that High Court was impressed by the fact that first revision application was dismissed in 1985 when advocate for the defendants in the suit died in 1986, after which another advocate by name Mr. Raja Sikandar Yasin was engaged and authorized to appear on their behalf and he appeared on two occasions viz. 6-8-1988 and 5-1-1989 and on one such occasion Mst. Bilquis was also present and in spite of that application for reopening their side was made on 9-10-1989 with no explanation for delay. High Court also held that earlier to the two dates mentioned above, service on defendants was held good on 24-4-1988 after statement of bailiff was recorded.
6. This Court has granted leave to examine two contentions. Firstly whether High Court was right in confining itself to the consideration of order dated 20-5-1990 by which application of defendants in the suit was dismissed not allowing them opportunity to cross-examine plaintiffs and not adverting to the merits of the decree which were also challenged in revision. Secondly whether Trial Court should have taken lenient view in allowing the prayer of defendants in the suit to lead their evidence after compensating the other party by awarding appropriate costs against any lapse or negligence on the part of defendants in the suit for not being vigilant.
7. So far the first point is concerned as mentioned above, it appears from the record that application for reopening side of defendants in the suit was dismissed by the Trial Court vide order dated 20-5-1990 and on the same day suit of the plaintiffs was decreed. There is prayer in the memorandum of revision application filed in the High Court for recall and setting aside of judgment and decree and also order dated 20-5-1990 and for remand of the case to the Trial Court to be heard afresh after providing opportunity to the defendants in the suit to cross-examine the plaintiffs and also to lead their own evidence. Perusal of the impugned judgment passed by the High Court clearly shows that merits of the decree have not been adverted to at all by the High Court. Plaintiffs in the suit had contended before the Trial Court that they were dispossessed by defendants in the suit, who claimed to be widow and children of late Zahid Hussain, who was owner of the house in dispute. Issue No,2 is to the effect as to who are legal heirs of deceased Zahid Hussain to inherit the property in this case, the plaintiffs or the defendants? Issue No,4 is whether defendant Mst. Bilquis Fatima is legally-wedded wife of deceased Zahid Hussain, if so what is its effect? Both these issues were considered together by the Trial Court and were found in favour of defendants and in this context it was held that Mst. Bilquis Fatima is legally-wedded wife of deceased Zahid Hussain and other defendants are his children and, therefore, under Muhammadan Law the property is to be devolved upon the defendants. On the other hand plaintiffs in the suit claimed to be relatives of the deceased but distant and not falling in the immediate category of legal heirs of deceased. According to the plaintiffs they were in possession of the suit property and were dispossessed by the defendants.
8. In the peculiar circumstances of the case as stated above, issue of dispossession should have been decided by the Trial Court on merits and the suit should not have been decreed against defendants on technical ground after denying them cross-examination of plaintiffs and not allowing them to produce evidence. Reasons assigned by the Trial Court for dismissing application filed by defendants in the suit for reopening their side also do not sound justifiable.
9. Perusal of the record shows that defendants in the suit filed application under Order VII, Rule 11, C.P.C. Which was dismissed by the Trial Court against which Civil Revision No,40/85 was filed which was dismissed by learned Ill-Additional District Judge, Karachi (West) for non-prosecution on 3-11- 1982. Mst. Bilquis Fatima took plea that during that time her counsel Mr. Mukhtiar Ali Rehmani had died and she repeatedly went to his office but found it closed. She being widow was maintaining her children by doing job and in such difficult situation lost track with the pendency of the proceedings. Trial Court rejected her plea on the ground that revision was dismissed for non- prosecution in the year 1985 and her advocate died in the year 1986 and, therefore, her explanation about losing track with suit proceedings was not satisfactory.
10. We have examined original record in the suit proceedings and find that there are no diaries in- between 7-3-1982 and 4-8-1987. There is no dispute about the fact that Civil Revision No,40/85 was dismissed for non-prosecution on 3-11-1985 and therefore question arises as to where was the record from 3-11-1985 to 4-8-1987 which is the date mentioned in the record of suit showing that R&P was received and there was order for issue of Court motion notices to the parties. Since record of C.R. No,40/85 is not available and attached with the record produced before us, this question cannot be answered. In any case in the record of suit proceedings writing of case diaries is resumed from 4-8-1987 showing order of issue of Court motion notices to the parties. There is a note in the margin of the case diary that notice was waived on behalf of plaintiff on 21-9-1987. After that on two dates Presiding Officer was on leave and on 28-1-1988 it was discovered that notice was not issued to the defendants hence such direction was repeated and the hearing was adjourned to 21-2-1988. It appears from order sheet of 21-2-1988 that notices on defendants were returned unnerved and order was passed to repeat and also affix notice on the outer door and Court Notice Board. On 4-4-1988 bailiff returned notice with endorsement of service on defendant No,3 (Rashid). On 21-4-1988 statement of bailiff was recorded and service was held good. On 16-7-1988 depositions of plaintiffs were recorded and the case was adjourned to the next date. On 6-8-1988 order sheet shows that advocates for parties were present but the case was adjourned to the next date on account of non-availability of electric light. Case was adjourned to 24-8-1988 for evidence but that day was declared as holiday and on the following day Presiding Officer was on leave and the case was adjourned to 27-9-1988 for evidence. On 7 dates thereafter the case was adjourned for reasons that either the next date was declared holiday or Presiding Officer was on leave. On 5-1-1989 advocates for the parties were present but the case was adjourned for want of time. After that on 5 dates the case was adjourned for the reason that the Court remained vacant.
11. It is prayed in the application of the defendants for reopening their side and further orders be recalled and set aside which were passed by the Trial Court on 16-7-1988 and 23-7-1989 closing their side and allowed to cross-examine plaintiffs and restored the suit. This is where misunderstanding has arisen because order sheet of 16-7-1988 shows that depositions of the plaintiffs were recorded and application was filed for adjournment by advocate for plaintiffs to bring other witnesses and that application was allowed. The case was adjourned to 6-8-1988 for evidence of witnesses. There is no mention in this order sheet either about defendants or about closing the side of plaintiffs. Order sheet of 23-7-1989 also shows that advocate for defendants was present and plaintiff was present in person and the case was adjourned for the next date. On 20-8- 1989 order-sheet shows that advocate for plaintiff was present but none was present on behalf of defendants and at 12-30 p.m. Side of the defendants was closed and case was adjourned to 10-9- 1989. On the adjourned date Mr. Ishrat Najmi, Advocate filed undertaking on behalf of defendants to file power on their behalf on the next date. Such power was filed. On the next date i,e, 21-9-1989 Presiding Officer was on leave and on the next date by consent the case was adjourned to 19-10- 1989 and before .That on 9-10-1989 application was filed by the defendants for reopening of their side which was heard and finally disposed of by order dated 29-5-1990. In the circumstances time starts running against defendants from 20-8-1989 when their side was closed and on the next date of hearing they filed undertaking of their advocate to file power and application for reopening their side was filed on 9-10-1989 which should not have been dismissed as time-barred in the chequered back-ground of the case as stated above, particularly when defendant is a widow and mother of small children, who are legal heirs of the deceased and have inherited his property after his death. It appears from the order-sheet of the suit record that no order was passed depriving specifically defendants from cross-examining plaintiffs but specific order was passed closing their side of evidence on 29-8-1989. In such circumstances it cannot be said that time started running against her when defendants were denied right of cross-examination of plaintiffs.
12. We are satisfied that in the circumstances stated above, Trial Court should have taken lenient view in allowing the prayer of the defendants in the suit to cross-examine plaintiffs and also to lead their own evidence. For reasons aforementioned, we set aside impugned judgments of the High Court and that of Trial Court and also order dated 20-5-1990 passed by the Trial Court and allow application dated 9-10-1989 of appellants/defendants in the suit by granting their prayer and in consequence this appeal is allowed with no order as to costs and the suit is remanded for further proceedings and fresh decision with permission to defendants to cross-examine plaintiffs and produce their evidence.