MUNIR A. SHEIKH, According to office note, this petition is barred by 61 days but in the application made by the petitioner for extension of time, he has assumed as if it is barred by time by 48 days. The impugned judgment was passed by the Lahore High Court on 14.2.2001. Application for obtaining certified copy was made on 21.3.2001 which was ready for delivery on 28.3.2001. Delivery of the copy was taken on 25.5.2001 and this petition was filed on 23.6.2001. In the said application seeking extension of time filed by the petitioner in paragraph-2, reasons of delay have been given which are re-produced below in extenso:- "(1) That the petitioner has filed the accompanying special petition for leave to appeal, which is time-barred for 43 days.
(2) That there is sufficient cause for not filing the appeal in the time fixed as the petitioner was suffering badly from Typhoid of a grave stage, therefore, he could not collect the prepared certified copy of the impugned order. Copy of the certificate is attached as ANNEXURE "A". {{BLUR PAGE}}..t4tivz)6Z
(3) That the liMM&1oaab bed res&,.By the,p1W4it99)(1,814pg.ifAqFtdent, Civil HospitakmK4,? pTlypt,91Atietlur,N et, syttoient cause . =t1.6 not,tspilqq6 of ri 119ViR no 651
(4) That the )rattiationAightt rof - the' ,:petitioner are at the stelkw,and tve)'shall', suffer loss Ate i\delay,of .48 days iigliotoomdoned.'"
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2. It has not been stated in this paragraph as to on whiCh date, the petitioner fell ill and he was advised bed rest. Even ,othervvise,.afteueollectinToettified copy on 25.5.2001 though he was bound..Tocollect:the same on 28.5.2001, no explanation given. ls19,,yypy petition was filed on 23.6.2001 after lapse about one month.
3. The reasons given in the application are no reasons in the eye.Ot for extension of ftirnis; thetefr*eXca011iNttiOnlirriadOqbYN the petitionerlOr the-purOotelhiaS1,!:niVSeibttanteT`Whierh '71 is herebyAiSfinissed:-As 'af'reitO1V:Wheredf, ?The-'tiitait p et iti diSmisisekVase,tiarted byfAirneL ntU refused.: .1;o1 A'sf.)iiqqA ; Or A691 asw 00&.E.:,.r.C. (190 ebsra akoiv Vdoo , eXitIon.Vism;s_sed`4, 4.3,11W volo3 Or(t to .1 no. V SVi,0&.) . Roos.a.Cs no belie 2E* n Secl aift as. (IC 91:1 emiI tO-nok4904(e.u.*:40 3\i6ci \eb to .Artor,a,s-i oeatioax -01 em rvaed IHyderaba Present: MUHA AQqHAN .gSsAnkand4rtOIR, Amt " 1A6-$e)i.Wzq on) I Bit t ) Lllyl, J.) . #TBS irivv #TBE Nadir us n; 3V69 tsiosqa.
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Sadaruddin & 3 others C.P. No. D-458, decided on 12th August, 2003. Civil Procedure Code, 1908-{{BLUR PAGE}}
0. V, R. 3, 0. I,, R. 5--Sindh Courfs'Rules, {{BLUR PAGE}}[Vol .V Nadir Hussain V. Sadaruddin 21 (Anlit#6 li''ViTlin7 J.)
93-A7P9,ssesskon and rrneshe , profit, suit for against e 2.,0-1 : 0 ,, -... . . resPOncienTs Nos'. l and' 1-- We have not been -,-E...4,.. .' viialp ,; peretiaaeiT by the cantts or the comments that responae, NO, 4 ,Wa JU 1 ; directing appearance ov$ noonr v.:le-91 .jofzik13 'recriv .d. of the petition /pie ufr, , too, at the stage of ill cle,ifev,02" '. 1.19 itmic th rt!Ernr.Kf- criii.i.-L2 I I lifiie - judicial , ' officers '
IJSr11.31$0;01 v: - flk-s 1.4r,t- .4 , -, .. presentation r 0 gs-- o icers are expectea to administer petite by adopting such procedure, which could bring comfort to the litigants--In the present proceedings the unreasoned order of the respondent 'No. ; 45'teit,:iwhichiinStead.'.' of hearing the edurisof'thert,,-,:tod.,45/if; there was ,a need of the nature, .Direction for personal appearance of ..The,ptsarty,,without aetighirtg, reason, was ,,,inconceivable--Even - in , the scomments of the respondent No. ,4,,nd, justification : has I:been r made in passing such an order, except, recording the -, provisions ' -of. :,'Ijr.derS.;:1r, and 3,
5. 'of the CPC--These provisions of Civil Procedure Code in no way help the respondent No. 4 in passing such an, unwarranted order of the natureverr.The reVisiOhaci,CPUri completely lost I ),-4. ,n. , .. Itself by of the issue raised before it ana misdirected itself :'---by affirming the forder Of the respondent1NO.,4--For the aforesaid reasons, we allow I A.h-A-, petition and b0:01, the l - torderalpeseed by respondent R9.163 and -respondent No. .941 qfp,,,sera-,,o4pP909 AOttlqu;11,911scl,icop as there was opp. Cccapiahlfpicither,espppcleptNo. 4 to direct personal Icappearance ;pflgthe,petitidnefi*e further .Direct the District and .Ese,ibn Judge, i-iiderabad to 'Therklihe case of the Petii%nirtdriiifiritira6coi.d'arice9- Wilfilivit to any other judicial OffiCi4Llithei' than ' the Pii,eleWho has passed the impugned order--..'d virlo ;big 5rt42.Natti HE.Rucortt beIneeelq (Pares 13,14) For the Perition =p,qr;, esfiryThilfs42, IngrA6 kbef ye ood A.I, E Advocate .
0 sone:15(1(1S vfpfAthe(1FsponfiRro. Kazi INtrawyvIr neAln k Advocate, A ? 190101 -I Sti OVi ri9b110(.1,29 3 el I ;30 eleblo 9rir seMasood-Noorani, AddL AdvooatefiGeriettal.,VOkterliSle rl , 5th A -itedil ,01,1 int-bri okv",,-; ate or hearing: oth ugust, . {{BLUR PAGE}}
AMIR HANI MUSLIM, J.--- Through this petition the petitioner has impugned order of the learned VI Additional District Judge, Hyderabad, respondent No. 3, dismissing the Civil Revision Application No. 65 of 2002, preferred by the petitioner against the order of V-Extra Joint Civil Judge and FCM, Hyderabad, respondent No. 4.
2. The material facts as pleaded in the petition are that on 1.10.2002 petitioner filed a suit for possession and mesne profit against Sadaruddin and Abdul Waheed, respondents Nos. 1 and 2 respectively, in the respect of respondent No. 4. The plaint was presented before the Nazir of the Court of respondent No. 4 on 1.10.2002 through a duly constituted Advocate. On presentation of the plaint, the Nazir has made the following endorsement:- 'Received today at 12.00 a.m. From Mr. Masood, Advocate on 1.10.2002.'
3. After presenting the plaint in the suit referred to hereinabove, the petitioner and his counsel left the Court office of the respondent No. 4 as the respondent No. 4 was holding Court and as per practice once the respondent No. 4 rose for the day the Nazir used to place files before the Presiding Officer in Chamber for appropriate Orders. The respondent No. 4, on the same day, passed the following order wheti *he case file was placed before her by the Nazir:- 'Suit is presented through Munshi the plaintiff called, absent, same be put up after checking and appearance of plaintiff in person.'
4. When the petitioner's counsel came to know of the orders of the respondent No. 4, reproduced hereinabove, he challenged the same before the respondent No. 3 through Civil Revision Application No. 65 of 2002. The respondent No. 3 after hearing passed an order dated 11.11.2002 dismissing the revision of the petitioner, which is also impugned in the present proceedings.
5. This Court appointed Mr. Kazi Munawwar A.I, Advocate, as amicus curiae and also issued notices to the learned Additional Advocate General, Sindh, President of High Court Bar Association, Hyderabad and Mr. Abdul Aziz, Member, Sindh Bar Council.
6. We have heard Mr. Syed Masood A.I, learned counsel for the petitioner, Mr. Kazi Munawwar A.I, learned amicus curiae and Mr. Masood Noorani, learned Additional A.-G., Presiding of High Court Bar Association, Hyderabad and Member, Sindh Bar Council, were not present, hence we were not benefited by their arguments.
7. Since the point raised in the Petition was short, therefore, with the consent of the learned counsel we decided to admit this petition to regular hearing and disposed it of finally.
8. It has been argued by the learned counsel for the petitioner that the impugned order dated 1.10.2002 passed by the respondent No. 4 was without reasons. He submitted that the provisions of Rules 85 to 93-A of the 'Sindh Civil Courts Rules' do not authorize the subordinate Courts to order personal appearance of a party if the party was duly represented by a counsel. He further submitted that the order dated 1.10.2002 whereby the petitioner/plaintiff in the suit was directed to appear in person was, therefore, improper. He argued that at best the respondent No. 4 could have ordered appearance of the Counsel in the event if there was any ambiguity either in presentation of the plaint or otherwise but ordering personal appearance of the petitioner straightaway was uncalled for. He also submitted that the learned respondent No. 3 who {{BLUR PAGE}} i r.m irm dismissed the Civil evision Application erred in , r . iiiiikhq'fiffi36raWiliq'thg4e*Ieliderls NO 1'4. rp,"6--hpal oll- : t 4"-,, Alf. rKaziaMuripwwar A.I, learned amipys curiae submitted that appearance of either party to the ,.., proeeedings.,,pould ordered by a Court if Circt.iPrISTeiCei so' eil Uit He ii:' " Flii "in '' this '-.Regard ' 4' has V 04(08r iiikisiglaiiisoi'bidei*:Ilidel;'0iddr4, Rule 1 a Eecii_lecir eftiitir) oi'iliiitittib, . cOl'Ah fete PoWei;'IOILiffil: 'e4k:1,-eiii, Ala' lib i3'r, 616 ii.Tii ii il Of the proceedings''Wriir`Oiaaiaiariaijnoftvit6,6iAil on !Behalf ; af I a partyci ii en futlh et4elie4cUPOntilloiprovisions of R triet,-115; and ; aziA : a the.,,SindbcPivii4,, Courts Rules, NI/ h ith deal with bitve citistittiti ons ofskproceectingsnbef ere the Subordinate Courts. 7iii-;;urfild that the iPtstkWefil:Pf Ctiurtri.,h;t&?Direct appearance of .-a :,patty; is available but could only be exercised whertitherecis some justifiable reasons. According to himi,inotheliveilfeiregmalaneee, , g. r,ovanOerht No. (1.Had exercised the discretion ite.F.t.Oig,:c4e rtierswial 'aPjtieer*ili' of the 'petitioner' was . -flo 3 oiv ., ,elo eitwir 11(.1r; no warranted ,.Xa '-l! Limbs oi bsbic,eb 9\A/ !9a4.-1007)
10. Mr. Masood *Ana* itheJeaffV4n4441tieeal 4,-qvIla c9ncended. That ,the Court has the power to tin -4 it that .,.i1,-4,,Flapptaimpli) tsie e, p;4t 't nod sp_fp._te_ the the , . - : .. .e /c ....Ti nil ft' sr ' 1910illt31.1 the pp.Pit:)Ae5vislyvtilv cRunos 1 mex a,p,pear oerere- Inc! ....Iv rns 1 et q 1./("1 ilse8eEn 0 4.000,dento, 1. -du,a 11 .WeidAhaveohear&,Ahe learned counsel and examined thecwritten comments',-IiledJ:!y?teepPnfent No. Il=i wherein it has been pleaded that under Order 5, Rule 3, CPC the Court eanorequireappearancivAf e,party. htioweiteri., the respendentitNelq45.4nr.)hercoornments has shot given any speciticireasonlor passing sUch.Ap-ordg.
9vbnlr The only question, ''Vv6fetisrlj requires sle (it ci 5/9 -E5,ii fli Arlieps.Vocither .:i4,316-kApodtyik, is il consi era loll, + 3, -, .: , , . c').Im'en-teli to iii!4.8:t ntie.t.s6101 lap p e a r,a fide -181ba I' party at The i'id:66).orifrOshiiitis5if; of the When the p%ceedinOrha4Lbigh fifoirthrou6firgif Advocate who, c-,-ciw E.; ..o Thebrtoqa'al bon ,,,Jz 3rf..:1- i'Brll ti;:i.i.Ti:n.,{{BLUR PAGE}} {{BLUR PAGE}} toti;: 6150atiedii,b6ftire the Nezir of the Court of respondent Ni J4c.,aliel'-'1the -fact of his- appearance is reflected in the note of~tte Nazir, The respondent No. 4 after _perusal of Ahe..Andorsement of the Nazir'!Nes. Passed. pL. Orcir ,,skire,cting eppearance of thepetitioneriPlejntiff),i- Ottlput assigning any justifiable, reason, ipp1.0d. Warrant such direction. Additionallywyvoilt ilelistrenge.{'was, that the respondent No 4 hesvpio,,51,k1 a irnRW,11#0,, order the presence of MurAtii-,-*cherafta )n;itie, comments no such fact has been meppdnestipwSr. The992ontents of the comments are self-conflicting. The judicial officers in law are reqiiifed`'to'-dispense justice softly and swiftly without inviting difficulties for the parties unless a direction of the nature was indispeniableere is no dispute in regard to powers of a:COUrtto direct appearance of a party but the question litHaVtirAether any occasion to exercise ...su04:,.:pOriteri- slltritiaAliVailable.Lia, the - reSpondent No. 4. a. A iilat IssAvt-4,A,
13. We have carefuk..Examined the contents of the comments of the resppndent No. 4,, end we have not been 5illtlaSediaribl siantenti661"W6"Camments thertmresOonderit8** 4 Oiika was justified' in" I re ctin g appearance of the petitioner/plaintiff, that, too, at the- stage of presentation of pleadings.
171-4,9joioal officers <. Are expected to administer justice, by adopting such pi(Oce'dtke,,,Afch co tl b it ci"60ifort to the litigants. In of the order r 'eipPaidehi-NO:c Whi'dhaliiiteedOf the' deligiiefitAt,21tiV9ieihelVVii"t need diiebtforicfoinfrelisdhll c ONIFtienfilMeifie reOend a NO?* n (16juStItiOetion lafeen19i'ac 4nnpaig:Sind 6C1dh afr 6Ydell&cept iecordiAY otrbrd'4Sicigaiteti,'OfYke CPC. These prriv `s CP..firMir6elfuiillthialngi-186Wi help the Lorder of citigihrittiee-Pt*allth'I'rgfilo'Nkit'ediiri'"&:06\iptetely. Lost{{BLUR PAGE}} sight of the issue raised before it and misdirected itself by affirming the order of the respondent No. 4.
14. For the aforesaid reasons, we allow the petition and both the orders passed by respondent No. 3 and respondent No. 4 are set-aside being without jurisdiction as there was no occasion for the respondent No. 4 to direct personal appearance of the petitioner. We further direct the District and Sessions Judge, Hyderabad to mark the case of the petitioner for trial in accordance with law to any other judicial officer other than the one who has passed the impugned order. .