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Petitioner: KHURSHED ALI KHAN VS Respondent: MUHAMMAD AYUBHonorable Justice Muhammad Shafi SiddiquiAsghar Ali
P L D 2025 Supreme Court 718 Present: Yahya Afridi, C.J., Muhammad Shafi Siddiqui and Miangul Hassan Aurangzeb, JJ KHURSHED ALI KHAN---Petitioner Versus MUHAMMAD AYUB and others---Respondents Civil Petition No. 3875 of 2024, decided on 8th May, 2025. (Against the order dated 20.06.2024 of the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat passed in C.R No.266-M/ 2024). Civil Procedure Code (V of 1908)--- ----O.IX, Rr.8 & 9---Dismissal of a suit for non-prosecution when the case was fixed for recording of evidence---Discretion of court to dismiss suit once ripe for hearing---Settlement of issues, effect of---The moment issues are framed in a suit, it becomes ripe for hearing---Distinction between pre-issues and post-issues proceedings stated---The petitioner filed civil suit wherein issues were framed and when the case was fixed for recording evidence, it was adjourned due to the absence of the defendants---However, on next date, though respondents/ defendants Nos. 1 to 7 were present, the petitioner failed to appear, resulting in dismissal of the suit for non-prosecution---Subsequently, the petitioner filed an application for restoration, citing his father's illness as the reason for absence---The application was dismissed for failure to justify the delay or providing sufficient cause---An appeal against this decision was also dismissed by the district court, subsequently, the petitioner then approached the Supreme Court---Held: In the suit the issues were framed and the moment issues were framed, the suit became ripe for hearing---Notwithstanding the listed applications on the fateful day, the suit was also listed for hearing as the issues had been framed and case was adjourned for evidence of petitioner/plaintiff---The argument that suit was not ripe for hearing or that it should not have been dismissed for non- prosecution and/or at the most the application fixed could have been dismissed, was not convincing---It was well within the discretion of court to dismiss the suit if it was ripe for hearing i.e. after settlement of issues---There was, however, a distinction between date of hearing of suit and date of appearance of parties before settlement of issuesand the later could not be at par with date of hearing which was not the case in the present matter---Leave to appeal was declined and the petition was dismissed, in circumstances. Asghar Ali, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner. Respondents not represented. Date of hearing: 8th May, 2025. ORDER MUHAMMAD SHAFI SIDDIQUI, J.---Petitioner filed suit being No.97/1 on 30.07.2019 wherein issues were framed on 10.01.2020 and 11.09.2021. Impugned order disclosed that on 27.02.2023 when the matter was fixed for evidence it was adjourned to 29.03.2023 on account of absence of defendants/ respondents. 2. On 29.03.2023 though defendants Nos. 1 to 7 were present before Trial Court but no one for petitioner/ plaintiff, which resulted in the dismissal of suit for non-prosecution. 3. Belatedly, a restoration application was filed on 23.05.2023 on the alleged illness of father of plaintiff, though counsel had marked his presence in the morning but did not appear later on the day of dismissal of suit. Grounds disclosed in the application were not found sufficient and consequently dismissed both the applications for condonation as well as restoration on 19.12.2023. Appeal preferred but met the same fate before District Judge, Swat vide order dated 17.01.2024. 4. The time barred application did not provide any satisfactory reasons. Before us learned counsel took a fresh ground that suit in presence of other applications, which were pending should not have been dismissed. 5. We are afraid the argument of the learned counsel is not convincing. In the suit the issues were framed and the moment issues are framed in a suit, it (suit) become ripe for hearing. Notwithstanding the listed applications on the fateful day, the suit has also listed for hearing as the issues have been framed and case was adjourned for evidence of petitioner/ plaintiff. This argument therefore is not convincing that suit was not ripe for hearing or that it should not have been dismissed for non-prosecution and/or at the most the application fixed could have been dismissed. It is well within the discretion of court to dismiss the suit if it is ripe for hearing i.e. after settlement of issues. There is however a distinction between date of hearing of suit and date of appearance of parties before settlement of issues1. Later cannot be at par with date of hearing which is not the case here. 6. In view of the foregoing, we are not inclined to interfere with the impugned order. Therefore, leave to appeal is declined and consequently this petition is dismissed. UN/K-4/SC Petition dismissed.