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Petitioner: INAYAT BIBI VS Respondent: REHANA KAUSARHonorable Justice Mian Saqib NisarMs. Najma Perveen,Munib Iqbal
2016 S C M R 2082 [Supreme Court of Pakistan] Present: Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ INAYAT BIBI---Petitioner Versus REHANA KAUSAR through L.Rs. and others---Respondents Civil Petition No. 553-L of 2014, decided on 11th March, 2016. (Against the order dated 6-2-2014 of the Lahore High Court, Lahore passed in W.P. No. 23428 of 2009) Civil Procedure Code (V of 1908)--- ---- O. X, R. 4---Plaintiff moved an application for restoration of her suit which had been dismissed for non-prosecution---Said application was dismissed by Trial Court---Legality---Case was not fixed for hearing on the date on which application for restoration of suit was dismissed, rather it was fixed for the personal appearance of the plaintiff---Plaintiff could not appear on the said date on account of her illness as explained in her application for restoration, thus in the circumstances the Court at best could have taken action against the plaintiff in terms of O. X, R. 4, C.P.C., but the Court could not dismiss the suit for non-prosecution---Order of dismissal was patently illegal and could not be sustained---Application for restoration of suit including the suit should have been restored when the application for restoration had been moved within the prescribed period of limitation---Suit filed by plaintiff was restored accordingly. Ms. Najma Perveen, Advocate Supreme Court for Petitioner. Munib Iqbal, Senior Advocate Supreme Court and Malik Amjad Parvaiz, Advocate Supreme Court for Respondents. Date of hearing: 11th March, 2016. ORDER MIAN SAQIB NISAR, J.---The suit for specific performance though earlier dismissed for non-prosecution, was subsequently restored, whereafter it again was dismissed for non-prosecution. The petitioner moved an application for restoration which was dismissed on 7.7.2005. The petitioner moved another application for restoration of the noted application on 8.10.2005, which has also been dismissed by an order of the learned Trial Court, which has been sustained throughout. 2. Heard. We find that the applications filed by the petitioner both were for restoration of the applications for restoration, therefore any view set out to the contrary by the Courts below is incorrect. Besides on 7.7.2005 the case was not fixed hearing, rather for the personal appearance of the petitioner. She could not appear on the said date on account of illness as explained in her application for restoration, thus in the circumstances the Court at the best could have taken action against the petitioner in terms of Order X, Rule 4, C.P.C., but this was not so done. However, the Court could not dismiss the suit for non-prosecution, therefore as the very order of dismissal was patently illegal, resultantly the same cannot sustain. Therefore, the application including the suit should have been restored to its original numbers when the application for restoration had been moved within a period of three months. Resultantly, in the circumstances, we set aside the impugned orders, restore the suit for specific performance filed by the petitioner with the direction to the parties to appear before the learned District Judge on 22.3.2016 who shall mark the case to the court of competent jurisdiction, which (Court) shall decide the matter within a period of five months from the date of appearance under intimation to this Court. Any disregard of the above order by the learned Trial Court shall be considered to be disobedience of this Court's order. Disposed of accordingly. MWA/I-11/SC Order accordingly.