1. Applicants have challenged the Order dated 17-5-2000 passed by the learned District and Sessions Judge. Karachi East, in Miscellaneous Civil Appeal No. 96 of 1999, filed by the applicants against the order dated 22-10-1999, passed by the IIIrd Senior Civil Judge Karachi, East, in Suit No. 1403 of 1996 (Old No.471 of 1986).
2. Brief facts of the case are that applicants, who are plaintiffs in Suit No. 471 of 1981 in which they have submitted that Plot No.3000-C, Roshan Abad, admeasuring 3000 sq. Yd. Belongs to one Latif-Sabir and was purchased by applicant/plaintiff No.1 in the year 1980 for Rs.15.000 and physical possession of the Suit Plot was handed over to him. It is stated that prior to purchase of the Suit Plot. Previous owner had shown all documents relating to the, Plot to the applicant/plaintiff No. 1. It is further stated that Rent Case No.2084 of 1987 was filed against one Hasan Muhammad and got ejectment order from the Court of learned Rent Controller and against that order, the applicant/plaintiff No.1 had filed F.R.A. No.777 of 1982 before this Court, which is still sub judice for adjudication. Thereafter, the applicant/plaintiffs filed the Suit. Notice was served upon respondent/defendant, who filed his written statement in which inter alias he has denied the contents of the plaint and contended that he is the sole and absolute owner of the Suit Plot.
3. Thereafter, by consent of the parties; learned trial Court settled the Issues on 21-2-1988. And the case was adjourned for evidence of the applicants/plaintiffs' side. Thereafter, the aforesaid case was received by IIIrd Senior Civil Judge Karachi, East on 9-10-1996 by way of transfer from that Court. The matter was fixed for evidence of the applicants/plaintiffs since long and he failed to adduce evidence, therefore, on 15-10-1997 the suit was dismissed for non-prosecution. The applicants/plaintiffs filed application under Order 9, Rule 9 read with section 151, C.P.C. Through their Advocate praying for the restoration of the Suit to its original position. Learned Counsel for applicants/plaintiffs also filed his own affidavit in support of the above application. Learned trial Court after hearing the parties dismissed the application, against which they preferred the Civil Miscellaneous Appeal No.96 of 1999 in the Court of learned District and Sessions Judge, Karachi, East, which too was dismissed. Hence this revision.
4. Mr. Shakil Ahmed, learned counsel for the applicants/plaintiffs has assailed the impugned judgment passed by the learned District and Sessions Judge, Karachi, East and order of trial Court.
5. He has contended that the learned trial Court has erred in law by dismissing the application under Order 9, Rule 9, C.P.C. As on the aforementioned date, the applicant/plaintiff was not feeling well. He has further argued that the suit was dismissed for non-prosecution in the morning at 10-30 a.m.
6. Whereas it is settled law that the matters should be decided on merits by giving full. Opportunities to the parties.
7. On the other hand, Mr. Kamaluddin Ahmed, learned counsel for the respondent has drawn my attention on Order 17, Rule-3, C.P.C. And has contended that Court may proceed; notwithstanding, either party fails to produce evidence and according to him, that any party to a suit to whom time has been granted, fails to produce his evidence, was to cause attendance of his witnesses or to perform any other act necessary to the further progress of the suit in which time has been allowed, the Court may, notwithstanding such default, proceed. To decide the suit forthwith. Mr. Kamaluddin Ahmed learned Counsel for the respondent has further submitted that order passed by the learned trial Court .As well as judgment passed by learned District and Sessions Judge, Karachi, East are proper, just and are not warranted by any interference as the applicants/plaintiffs have failed to adduce evidence since long although full opportunities were afforded to them but they failed to avail the same. It is further contended that on the date of dismissal of suit on non-prosecution, neither the applicants/plaintiffs nor their counsel were present as well as no intimation was sent to the learned trial Court, as such, the order of the learned trial Court is legal. Learned counsel for the respondent has also drawn my attention to the counter-affidavit of the respondent/defendant before the learned trial Court and has also drawn my attention on application under Order 9, Rule 9 read with section 151, C.P.C. For the restoration of Suit No. 1403. Of 1996 to its original position and such application is available with record and Proceedings at page 51; according to him, in such application under Order 9, Rule 9, read with section 151, C.P.C. No reasons have been assigned for the restoration of the suit to its original position. He has contended that only in affidavit of an advocate in Paragraph. No.3 it is mentioned that he was busy before this Court and, therefore, could not appear within time before the learned trial Court and came by 12.00 O' clock but the said suit was dismissed at 11-30 a.m. According to him, this is not proper reason; if the learned counsel for applicants/plaintiffs was busy in High Court; the applicants/plaintiffs ought to have been present in the Court premises and have been causing delay in the matter by one way or the other; the legal heirs have not been brought on record as applicants/plaintiffs had died, which amounts wilful negligence. He has placed reliance on PLD 1987 SC 139 and PLD 1975 SC 678.
8. I have heard the learned counsel for the parties and have given my anxious thought on their submissions and have also perused the record and proceedings of the case. I have also gone through the Impugned order and impugned judgment passed by the respective Courts.
9. Admittedly, the matter pertains to the year 1986.And in spite of expiry of more than 18 years the applicants/plaintiffs have failed to, adduce the evidence. It is also quite obvious that applicants/plaintiffs were given so may opportunities to bring evidence. On record but they have failed to avail the same; ultimately, on 15-10-1997 the applicants/plaintiffs and their counsel remained absent without any intimation when the impugned order was passed by learned trial Court. I also find from the record of the learned trial Court that suit of the applicants/plaintiffs was dismissed for non-prosecution at 11-30 a.m., when nobody was present from their side nor any intimation was given to the Court. This fact has been admitted in Paragraph No.3 of the affidavit, filed by Mr. Farukh Zia Shaikh, learned-counsel for the applicants/plaintiffs that he came in the trial Court at 12.00 O'clock but the suit was already dismissed; whereas the learned counsel appearing for the respondent said that the suit was dismissed for non-prosecution at 10.30 a.m. As such'- there is conflict in the version being put forward by the learned counsel for applicants/plaintiffs, which amounts that the applicants/plaintiffs were intentionally and deliberately trying to prolong the matter whereas there are directions of the superior Courts that -all cases should be decided at an earliest, by giving top priority.
10. Mr. Shakil Ahmed, learned counsel for applicants/plaintiffs in rebuttal submitted that the suit was dismissed for non-prosecution on 16-10-1997 and the applicantion has been moved on 18-10-1997 for restoration of the suit to its original position but the learned Counsel for respondent/defendant filed counter-affidavit on such application on 24-10-1998 and according to him exactly after the lapse of more than one year the counter-affidavit has been filed by the learned counsel for respondent/defendant. According to learned counsel for applicants/plaintiffs the trial Court has passed order on 22-10-1999 after a lapse of one year and therefore, no delay has been caused by the applicants/plaitniffs before the learned trial Court. He has further submitted that cases are to be decided on merits and not on mere technicalities and has placed reliance on 1980 MLD 501.
11. When these points were raised by the learned counsel for applicants/plaintiffs during the course of arguments, learned counsel for respondent/defendantt was put on guard to reply on these points.
12. The learned Counsel for respondent Mr. Kamaluddin Ahmed submitted that no doubt the application has been, filed on 18-10-1997 and counter-affidavit has been filed on 24-10-1998 but the notice of such application, was served on the respondent/defendant on 21-8-1998 and the matter was adjourned to 24-9-1998 for objections and, therefore, there is no delay whatsoever on the part of respondent/defendant and he is not party to the delaying tactics as assailed the impugned judgment passed by the learned District and Sessions Judge, Karachi, East and order of trial Court. He has contended that the learned trial Court has erred in law by dismissing the application under Order 9, Rule 9, C.P.C. As on the aforementioned date, the applicant/plaintiff was not feeling well. He has further argued that the suit was dismissed for non-prosecution in the morning at 10-30 a.m. Whereas it is settled law that the matters should be decided on merits by giving full opportunities to the parties.
13. On the other hand, Mr. Kamaluddin Ahmed, learned counsel for the respondent has drawn my attention on Order 17, Rule-3, C. P. C. And has contended that Court may proceed; notwithstanding, either party fails to produce evidence and according to him, that any party to a suit to whom time has been granted, fails to produce his evidence, was to cause attendance of his witnesses or to perform any other act necessary to the further progress of the suit in which time has been allowed, the Court may, notwithstanding . Such default, proceed. To decide the suit forthwith. Mr. Kamaluddin Ahmed learned Counsel for the respondent has further submitted that order passed by the learned trial Court .As well as judgment passed by learned District and Sessions Judge, Karachi, East are proper, just and are not warranted by any interference as the applicants/plaintiffs have failed to adduce evidence since long although full opportunities were afforded to them but they failed to avail the same. It is further contended that on the date of dismissal of suit on non- prosecution, neither the applicants/plaintiffs nor their counsel were present as well as no intimation was sent to the learned trial Court, as such, the order of the learned trial Court is legal.
14. Learned counsel for the respondent has also drawn my attention to the counter-affidavit of the respondent/defendant before the learned trial Court and has also drawn my attention on application under Order 9, Rule 9 read with section 151, C. P. C. For the restoration of Suit No. 1403. Of 1996 to its original position and such application is available with record and Proceedings at page 51; according to him, in such- application under Order 9, Rule 9, read with section 151, C. P. C. No reasons have been assigned for the restoration of the suit to its original position. He has contended that only in affidavit of an advocate in Paragraph- No.3 it is mentioned that he was busy before this Court and, therefore, could not appear within time before the learned trial Court and came by 12.00 O' clock but the said suit was dismissed at 11-30 a.m. According to him, this is not proper reason; if the learned counsel for applicants/plaintiffs was busy in High Court; the applicants/plaintiffs ought to have been present in the Court premises and have been causing delay in the matter by one way or the other; the legal heirs have not been brought. On record as applicants/plaintiffs had died, which amounts wilful negligence. He has placed reliance on PLD 1987 SC 139 and PLD 1975 SC 678.
15. I have heard the learned counsel for the parties and have given my anxious thought on their submissions and have also perused the record and proceedings of the case. I have also gone through the impugned order and impugned judgment passed by the respective Courts.
16. Admittedly, the matter pertains to the year 1986 and in spite of expiry of more than 18 years` the applicants/plaintiffs have failed to adduce -the evidence. It is also quite obvious that applicants/plaintiffs were given so may opportunities to bring evidence. On record but they have failed to avail the same; ultimately, on 15-10-1997 the applicants/plaintiffs and their counsel .Remained absent without any intimation when the impugned order was passed by learned trial Court. I also find from the record of the learned trial Court that suit of the applicants/plaintiffs was dismissed for non-prosecution at 11-30 a.m. When nobody was present from their side nor any intimation was given to the Court. This fact has been admitted in Paragraph No.3 of the affidavit, filed by Mr. Farukh Zia Shaikh, learned-counsel for the applicants/plaintiffs that he came in the trial Court at 12.00 O'clock when the suit was already dismissed; whereas the learned counsel appearing for the respondent said that the suit was dismissed for non-prosecution at 10.30 a.m. As such-there, is conflict in the version being put forward by the learned counsel for applicants/plaintiffs, which amounts that the applicants/plaintiffs were intentionally and deliberately trying to prolong the matter whereas there are directions of the superior Courts that - all cases should be decided at an earliest, by giving top priority.
17. Mr. Shakil Ahmed,' learned counsel for applicants/plaintiffs in. Rebuttal submitted that the suit was dismissed for non-prosecution on 16-10-1997 and the application has been moved on 18-10-1997 for restoration of the suit to its original position but the learned Counsel for respondent/defendant filed counter-affidavit on such application on 24-10-1998 and according to him exactly after the lapse of more than one year the counter-affidavit has been filed by the learned counsel for respondent/defendant. According to learned counsel for applicants/plaintiffs the trial Court has passed order on 22-10-1999 after a lapse of one year and therefore, no delay has been caused by the applicants/plaitniffs before the learned trial Court. He has further submitted that cases are to be decided on merits and not on mere technicalities and has placed reliance on 1980 MLD 501.
18. When these points were raised by the learned counsel for applicants/plaintiffs during the course of arguments, learned counsel for respondent/defendant was put on guard to reply on these points.
19. The learned Counsel for respondent Mr. Kamaluddin Ahmed submitted that no doubt the application has been filed on 18-10-1997 and counter-affidavit has been filed on 24-10-1998 but the notice of such application was served on the respondent/defendant on 21-8-1998 and the matter was adjourned to 24-9-1998 for objections and, therefore, there is no delay whatsoever on the part of respondent/defendant and he is not party to the delaying tactics as being alleged by the learned counsel for applicants/plaintiffs. Learned counsel for respondent Mr. Kamaluddin Ahmed has further submitted that as far as the order passed by the learned trial Court on 22-10-1999 is concerned, he has nothing to do with the judicial order and it is upto the learned Judge to pass order whenever, it is passed by the learned Judge. He has further drawn my attention on application under section 151, C.P.C. Moved by the learned counsel for applicants/plaintiffs that both the plaintiffs Nos. 1 and 2 have expired in Suit No. 1403 of 1996 and, therefore, the respective legal heirs of these plaintiffs Nos.1 and 2 may be substituted for them as per law to adduce the evidence and proceed with the matter, according to learned counsel for respondent such application is not being supported by any affidavit: I have also examined the application which is not supported by an affidavit and the names of the legal heirs are not mentioned. In the said application dated 24-5-1999. Admittedly, there is delay on the part of applicants/plaintiffs before the learned trial Court and they have failed to adduce their evidence and they have expired but their legal heirs have not been joined in the suit before the learned trial Court as the names of the legal heirs do not appear in the application and I am fortified by a case of Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678) wherein the Hon'ble Supreme Court has observed that: "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 the importance of legal technicalities and rules of procedure in the administration of justice, it is inevitable to recall the verious evolutiounary stages in the transition from justice without law of primitive society to justice in accordance with law of mordern 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 fide. Over a period 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.
20. The above are the reasons for my short order dated 24-1-2001