(a) Civil Procedure Code (V of 1908)- -
--O.VII, R.11 & O.IX, R. 8--Constitution of Pakistan (1973), Art. 199--Dismissal of suit for non-prosecution--Case was fixed for hearing .application for rejection of plaint under O.VH, R.11, C.P.C. filed by at respondent and not for hearing main case--Suit, held, could not be dismissed for non-prosecution--Order of dismissal of suit declared as without lawful authority and case remanded for decision afresh from the stage it was dismissed.
Badrudduja Khan for Petitioners.
Muhammad Yousuf for Respondent No.2
Mirza Yaqoob Baig for Respondent No.3.
NAZIR AHMAD SIDDIQUI VS DISTRICT JUDGE (WEST), KARACHI1989 M L D 1873[Karachi]Before Ajmal Mian, C.J. and Abdul Rahim Kazi, JNAZIR AHMAD SIDDIQUI and others---PetitionersversusDISTRICT JUDGE (WEST) KARACHI and others--RespondentsConstitutional Petition No. D-881 of 1988, decided on 17/10/2017.
ORDER
AJMAL MIAN, C.J: ----This petition is directed against the orders dated 23-9-1987 and 24-3-1988 passed by the learned District Judge, West Karachi, in Civil Revision No. 39 of 1987, whereby by the former order, the learned District Judge set aside the order dated 27-4-1987 passed by the learned Vth Senior Civil Judge, West Karachi, in Suit No. 4730 of 1982 upon an application under Order 9 Rule 9, CPC filed by the present petitioner and by the latter order, the learned District Judge dismissed the review petition against the above order dated 23-9-1987.
2. The brief facts leading to the filing of the above petition are that the petitioner filed aforesaid suit for declaration and injunction. It seems that the aforesaid suit was transferred from the lied Senior Civil Judge to the Vth Senior Civil Judge. On 25-10-1986, the case was fixed before the Vth Senior Civil Judge for returning the Court motion notice for the service on the plaintiff. The service on the plaintiff was held, good and thereafter the case was put off to 15-11-1986 for hearing of respondent No.2's application under Order 7 Rule 11 CPC for rejection of the plaint. The above case had come up for hearing before the learned Vth Senior Civil Judge on 15-11-1986 when the petitioner was not present and the learned Vth Senior Civil Judge dismissed the suit for non- prosecution. The petitioner filed an application under Order 9 Rule 9 CPC, which was allowed by the learned Senior Civil Judge by his order-dated 27-4-1987. Against the above order, respondent No. 2 filed aforesaid Civil Revision No. 39 of 1987, which was allowed by the order dated 23-9-1987 by the learned District Judge, West Karachi and the learned Senior Civil Judge's aforesaid order dated 27-4-1987 was set aside. Against the above order, the petitioner filed a review petition on the ground that the aforesaid order dated 23-9-1987 was passed without hearing the petitioner. However, the said review petition was dismissed by the impugned order dated 24-3-1988. The petitioner has filed the present petition.
3. A Division Bench of this Court had issued pre-admission notice to the respondents Nos. 2 and 3 in response whereof Mr. Muhammad Yousuf is present for respondent No. 2, whereas Mr. Mirza Yaqoob Baig for respondent No. 3.
4. We have heard the learned counsel for the parties and it appears, as pointed out here in above, that on 25-10-1986, the case was adjourned to 15-11-19&5 for hearing of respondent No. 2's application and not for the hearing of the main case. In this view of the matter, the learned Senior Civil Judge could not have dismissed the suit for non-prosecution on 15-11-1986 but could have proceeded with the above application of respondent. No. 2 and could have allow the same by rejecting the plaint even in the absence of the petitioner if he was absent without any justifiable reason. This was not done. In this view of the matter, it is evident that the order of the dismissal of the suit was without lawful authority.
5. We would, therefore, allow the above petition and declare the two orders of the learned District Judge, West Karachi restoring the above order dated 15-11-1986 passed by the learned Vth Senior Civil Judge, dismissing the suit for non-prosecution as being without lawful authority. The parties will appear before the learned Vth Senior Civil Judge on 24-10-1988 without any notice from the Court and the learned Senior Civil Judge will hear the respondent No. 2's aforesaid application under Order 7 Rule 11 CPC and would decide the same without any further delay. If the petitioner does not appear on the above date, the learned Senior Civil Judge will be free to proceed with the above application.
6. The petition stands disposed of in the above terms with no order as to cost.
M.Y.H./N-162/K
Petition allowed.
(a) Civil Procedure Code (V of 1908)- -
--O.VII, R.11 & O.IX, R. 8--Constitution of Pakistan (1973), Art. 199--Dismissal of suit for non-prosecution--Case was fixed for hearing .application for rejection of plaint under O.VH, R.11, C.P.C. filed by at respondent and not for hearing main case--Suit, held, could not be dismissed for non-prosecution--Order of dismissal of suit declared as without lawful authority and case remanded for decision afresh from the stage it was dismissed.
Badrudduja Khan for Petitioners.
Muhammad Yousuf for Respondent No.2
Mirza Yaqoob Baig for Respondent No.3.
ORDER
AJMAL MIAN, C.J: ----This petition is directed against the orders dated 23-9-1987 and 24-3-1988 passed by the learned District Judge, West Karachi, in Civil Revision No. 39 of 1987, whereby by the former order, the learned District Judge set aside the order dated 27-4-1987 passed by the learned Vth Senior Civil Judge, West Karachi, in Suit No. 4730 of 1982 upon an application under Order 9 Rule 9, CPC filed by the present petitioner and by the latter order, the learned District Judge dismissed the review petition against the above order dated 23-9-1987.
2. The brief facts leading to the filing of the above petition are that the petitioner filed aforesaid suit for declaration and injunction. It seems that the aforesaid suit was transferred from the lied Senior Civil Judge to the Vth Senior Civil Judge. On 25-10-1986, the case was fixed before the Vth Senior Civil Judge for returning the Court motion notice for the service on the plaintiff. The service on the plaintiff was held, good and thereafter the case was put off to 15-11-1986 for hearing of respondent No.2's application under Order 7 Rule 11 CPC for rejection of the plaint. The above case had come up for hearing before the learned Vth Senior Civil Judge on 15-11-1986 when the petitioner was not present and the learned Vth Senior Civil Judge dismissed the suit for non- prosecution. The petitioner filed an application under Order 9 Rule 9 CPC, which was allowed by the learned Senior Civil Judge by his order-dated 27-4-1987. Against the above order, respondent No. 2 filed aforesaid Civil Revision No. 39 of 1987, which was allowed by the order dated 23-9-1987 by the learned District Judge, West Karachi and the learned Senior Civil Judge's aforesaid order dated 27-4-1987 was set aside. Against the above order, the petitioner filed a review petition on the ground that the aforesaid order dated 23-9-1987 was passed without hearing the petitioner. However, the said review petition was dismissed by the impugned order dated 24-3-1988. The petitioner has filed the present petition.
3. A Division Bench of this Court had issued pre-admission notice to the respondents Nos. 2 and 3 in response whereof Mr. Muhammad Yousuf is present for respondent No. 2, whereas Mr. Mirza Yaqoob Baig for respondent No. 3.
4. We have heard the learned counsel for the parties and it appears, as pointed out here in above, that on 25-10-1986, the case was adjourned to 15-11-19&5 for hearing of respondent No. 2's application and not for the hearing of the main case. In this view of the matter, the learned Senior Civil Judge could not have dismissed the suit for non-prosecution on 15-11-1986 but could have proceeded with the above application of respondent. No. 2 and could have allow the same by rejecting the plaint even in the absence of the petitioner if he was absent without any justifiable reason. This was not done. In this view of the matter, it is evident that the order of the dismissal of the suit was without lawful authority.
5. We would, therefore, allow the above petition and declare the two orders of the learned District Judge, West Karachi restoring the above order dated 15-11-1986 passed by the learned Vth Senior Civil Judge, dismissing the suit for non-prosecution as being without lawful authority. The parties will appear before the learned Vth Senior Civil Judge on 24-10-1988 without any notice from the Court and the learned Senior Civil Judge will hear the respondent No. 2's aforesaid application under Order 7 Rule 11 CPC and would decide the same without any further delay. If the petitioner does not appear on the above date, the learned Senior Civil Judge will be free to proceed with the above application.
6. The petition stands disposed of in the above terms with no order as to cost.
M.Y.H./N-162/K
Petition allowed.
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