' This revision application under section 115,. C.P.C. Arises out of an order, dated 31-3-1999 passed by learned Additional District Judge Sukkur whereby he upset an order dated 12-10-1998 passed by Senior Civil Judge Sukkur and restored the suit dismissed for non-prosecution subject to payment of costs of Rs,1,000.
2. Respondent filed a suit for recovery of Rs,175,000 against the applicant as being arrears of rent due which was contested by the latter. He moved an application under Order 7, Rule 11, C.P.C. For rejection of the plaint but remained unsuccessful upto the level of the High Court, On 13-1-1998 suit was fixed for recording evidence on issues when neither the respondent nor his counsel appeared before the trial Court with the result that the same was dismissed for non-prosecution.
3. Respondent moved an application under Order 9, Rule 9, C.P.C. Duly supported by affidavit of the counsel who stated that due to oversight he had not posted the hearing of the suit in his case diary, therefore, he was unable to appear before the Court. He added that he could not inform the respondent for the reason that the same was not posted in his case diary nor the diary of his junior lawyer. This application was seriously resisted by the applicant and dismissed by the trial Court.
Respondent impugned the dismissal order in Civil Miscellaneous Appeal No,83 of 1998 which was allowed by learned Additional District Judge with the observation that the law favours adjudication on merits rather than on technicalities. It is as against the conflict of judgment that the applicant has invoked the revisional jurisdiction of this Court with a prayer that the view taken by appellate Court may be set aside and the decision made by the trial Court be restored.
4. At the hearing learned counsel for the applicant vehemently contended that this was a case of gross negligence on the part of the respondent as well as his counsel for which the applicant should not be made to suffer. I am least impressed by this submission of the counsel as a plain reading of the impugned order tends to show that no doubt the suit had remained pending before the trial Court for two years, this was a solitary instance of the absence of the respondent and his counsel. Obviously in his application as well as the supporting affidavit learned counsel explained that it was owing to his oversight that the case was not posted in his case diary and therefore he could not inform the party about the date of hearing which resulted in his bona fide absence on the date of hearing. There appears to be no strong circumstance on the record tending to show that the respondent and/or his advocate acted with negligence much less gross neglect in prosecution of the suit. Indeed the respondent's counsel appears to have offered a reasonable explanation which would amount to a sufficient cause within the meaning of the term meetings the requirement of law for restoration of a case dismissed in default and/or for lack of prosecution.
5. It is well-settled that in the event of conflict of judgment view taken by the appellate forum must be preferred unless it is shown that the view taken is contrary to the settled proposition of law, arbitrary, fanciful or perverse on the face of it. In the peculiar circumstances the finding recorded by the appellate Court does not suffer from any legal infirmity or jurisdictional error so as to be corrected in the exercise of revisional jurisdiction which is purely discretionary with the Court.
6. Mr. Channa learned counsel for the applicant has cited Ahmed Hassan v. Aziz Ahmed 1979 CLC 629 authored by Muhammad Afzal Zullah, J. (as he then was) while serving in the Lahore High Court. No doubt petition for restoration of the case was dismissed, in the reported case, the facts of the case are entirely different and distinguishable, and therefore, the view formed cannot be universally applied. On the contrary there is plethora of judgments from the Superior Courts that a case should ordinarily be tried on merits rather than on technical knockout. In Muhammad Afzal v.
Small Business Finance Corporation 1997 CLC 1080 application for restoration of suit although filed beyond prescribed period of thirty days, was allowed by a learned Single Judge of this Court for the reason that the contents of counsel's affidavit could not be lightly disbelieved. Therefore, it was quite possible that he never received notice of date of hearing. As the order of dismissal in the said case had been passed without notice to parties, learned Single Judge held that Court would have inherent power under section 151, C.P.C. For restoration of suit.
7. In Begum v. Begum Kaniz Fatima Hayat 1989 SCM R 883 Full Bench of the Supreme Court ruled that rules of procedure are not to be too technically applied but are construed to foster cause of justice. It was further held that a party is to be visited with penalty of being deprived of a fair trial on merits not by way of penalty except when there was positive evidence of negligence beyond explanation. In this case counsel in support of the application for restoration had filed affidavit about his illness duly supported by medical certificate which was not called in question.
Honourabe Supreme Court held that such affidavit should be accepted as established as against mere denial of such assertion by defendants. It was held that the words "sufficient cause" for restoration of a suit dismissed for default are not susceptible to any exact definition and no hard and fast rules can be laid down and if non-appearance was not intentional, that should not be viewed very strictly.
8. In Abdul Qavi Siddiqui v. District Judge 1997 M LD 1261 speaking for the Division Bench at Circuit Court, Hyderabad I took the view that:-- "There can be no cavil with the proposition of law that the law leans in favour of adjudication of disputes on merits but this principle cannot be allowed to be exploited by litigants who do not invoke the jurisdiction of the Court with clean hands. Law favours adjudication of a case on merits only when a person comes to the Court with clean hands and equitable considerations also lie in his favour. Again for securing the ends of complete justice and defeating the mischief technicalities of law cannot prevent High Court from exercising its Constitutional jurisdiction and affording relief which otherwise a petitioner is found entitled to.
' I am fortified in this view by a decision of the Honourable Supreme Court of Pakistan in case of Pakistan Engineering Council and 2 others v. Engineer I.A. Osmani and 3 others 1991 SCM R 654 wherein it was observed that in the matter of entertainment of petitions and grant of relief in equitable and discretionary jurisdiction it is necessary not to be guided wholly by the technicalities of the law but also by the substance of the controversy when the proceedings did not suffer from mala fides of fact. The technicalities cannot be permitted to defeat the ends of justice was the view taken by the illustrious Judge late Mr. Justice A.R. Cornelius in the case reported as Imtiaz Ahmad v.
Ghulam Muhammad and 2 others PLD 1963 SC 382."
9. The aforesaid view was reiterated in the case of Province of East Pakistan v. Sirajul Haq Patwari (1967) 1 PSCR 35 in the following words:-- "It was, as I have already remarked, a res of the highest order and when it was placed in jeopardy by the petitions moved in these cases, it was the duty of the High Court in interpreting and applying the relevant instruments including the Constitution to bear in mind the great maxim ut res mages valeat quam pereat that is to say, that the affair should presper rather than be brought to destruction. It may be that the maxim that was borne in mind was rather fiat justition rural coelum, that is to say let justice prevail though the heavens should fall."
' This view was consistently followed by the Honourable Supreme Court in the case of Manager, Jammu and Kashmir Estate Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 and it was held as under: "The proposition could hardly be disputed that the principal object behind all legal formalities is to safeguard the paramount interest of justice. In fact while considering importance of legal technicalities and rules of procedure in the administration of - justice, it is inevitable to recall the various evolutionary stages in the transition from justice without law of primitive society to justice in accordance with law of modern society and the conflict between equity and law in judicial history.
It cannot be denied that legal precepts were devised with a view to impart certainty, consistency and uniformity to administration of justice and to secure it against arbitrariness, errors of individual judgment, and mala fides. Over a period of time this development of codes and rules led to the evolution of what is called 'Jurisprudence of Conception' a system of logical deduction from fixed premises."
11. For the aforesaid reasons there is no merit in this revision application which is accordingly dismissed in limine alongwith the listed application.