When Application is a topic of hearing , the main suit can't be dismissed if parties are not present on hearing on same date.
Must read Judgement
2025 C L C 316
[Peshawar]
Before Muhammad Naeem Anwar, J
SARFARAZ KHAN ---Petitioner
Versus
PESHAWAR DEVELOPMENT AUTHORITY through Director and others ---Respondents
Civil Revisions Nos.456-P and 489-P of 2022, decided on 19th July, 2024.
(a) Civil Procedure Code (V of 1908)---
----S.114, O.XVII, Rr.2, 3, O.XLIII, R.1 & O.IX, R.4---Specific Relief Act (I of 1877), Ss.42 & 54---Suits for declaration with perpetual and mandatory injunction---Filing of application for adjourning the suits sine die till the decision of pending writ petitions---Non-appearance of parties---Fixation of applications and not the suits for hearing when the notices for invoking powers under O.XVII, R.3, C.P.C., were issued and suits were dismissed for non-compliance of order of Trial Court to argue the suits in absence of petitioner---Appeals preferred by the petitioner were dismissed being time barred and the review applications were dismissed being incompetent---Validity---Dismissal of suit under O.XVII, Rr.2 & 3, C.P.C. provides the remedy under O.IX, R.4, C.P.C., where the plaintiff may bring a fresh suit, or the court may restore the suit on the application filed by the plaintiff---Orders of the Trial Court dismissing the suits for non-compliance of order by invoking the provisions of O.XVII R.3, C.P.C were not in consonance with law---Order XLIII R.1, C.P.C., is in respect of the appeals against the orders, however, there is no reflection of the appeals under O.XLIII, R.1, C.P.C.---It is the duty of the court to be aware of the facts and proper application of law, however, the appeals filed by the petitioners were dismissed being time barred against which review applications were filed which too were dismissed---Initial order of the Trial Court was not in consonance with law as the main suits before the Trial Court were not fixed for hearing rather the suits were fixed for hearing of the applications, which were submitted by the respondents to adjourn the cases sine die and the same were required to be decided after hearing the parties either in acceptance thereof or dismissal but in the absence of both the parties, the suits were dismissed which were not fixed before the court for hearing---Scope of application under S.114 read with O.XLVII, R.1, C.P.C., is limited and review is possible only when there is an error floating on the surface of the record which did not appear in the matters in hand, thus, the Trial and Appellate Courts had committed an illegality while passing the orders as suits could not be dismissed for non-compliance of direction of the court when no one was before the court---Civil Revisions were allowed, in circumstances.
Muhammad Aslam v. Nazeer Ahmed 2008 SCMR 942; Lahore Municipal Corporation v. S. Abdul Rahim and 3 others PLD 1973 Lahore 391 and Amanullah Khan and 5 others v. Mst. Hayat Bibi and 4 others 2006 CLC 1546 rel.
(b) Civil Procedure Code (V of 1908)---
----O.XVII, Rr.2 & 3---Issuance of notice under O.XVII, R.3, C.P.C. in absence of parties---Effect---Notice to take a further step towards the logical end or the conclusion of the lis pending adjudication before the court could only be issued in the presence of the parties and not in their absence---No one was present before the court when notice was issued under O.XVII, R.3, C.P.C.---Trial Court could have proceeded in terms of O.XVII, R.2, C.P.C., but that was not done in the present matter and the Trial Court had gone to the extent of dismissing the suit under O.XVII, R.3, C.P.C.
(c) Administration of justice---
----Matters are to be decided on merits instead of technicalities and parties are to be allowed to lead evidence in support of their cases.
Aslam Khan Chamkani for Petitioner.
Syed Murtaza Zahid Gillani for Respondents.
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