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Petitioner: AQEEL AHMED VS Respondent: FAREED AHMED and others
Court Name: Sindh High Court Judge(s): Arshad Noor Khan Title: AQEEL AHMED vs FAREED AHMED and others Case No.: Civil Suit No, 1552 of 2005 Date of Judgment:- Reported As: 2010 YLR 2053 Result: Application allowed
Judgment ORDER ' ARSHAD NOOR KHAN, J.--- Learned counsel for the plaintiff in support of present application has contended that on 4-12-2006 his son was operated in Liaqat National Hospital, therefore because of such severe and chronic illness of his son, he could not attend the Court and suit was dismissed in default, therefore, the absence' on his part was not wilful nor deliberate but was on account of chronic illness of his son, as such order dated 4-12-2006 may be recalled. ' Mr. Arif Khan, advocate for defendant No,2 vehemently opposed the contention advanced by the learned counsel for the plaintiff and has contended that the plaintiff and his counsel are duty bound to remain present in Court and they have not fulfilled their obligations, therefore, the order was rightly passed by the Court whereby dismissing their suit. ' I have considered the arguments advanced by the learned counsel for the parties and have gone through the material available before me. A perusal of the order and 4-12-2006 shows that the plaintiff and his counsel were called absent on that day till 1.00 p.m. Therefore the application was dismissed in default for non-prosecution. The suit was dismissed on 4-9-2006 in default for non-prosecution, however, on that day the plaintiff was not required to fulfil any obligation on his part nor he had to make any compliance and the suit was fixed for filing of written statement by defendants Nos. 1 to 4. The record also shows that defendants Nos. 1 to 4 were also called absent on that day and at the most order regarding ex parte proceedings against defendants Nos.1 to 4 should have been passed instead of dismissing the suit in default for non-prosecution. The dismissal of the suit for non-prosecution is, therefore, an act of the Court, for which parties could not be penalized.
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' In view of the aforesaid circumstances, I am of the considered opinion that the suit of the plaintiff could not be dismissed in default for non-prosecution and the order regarding exparte proceedings against defendants Nos.1 to 4 had to pass. Application is therefore, allowed, as prayed and order dated 4-12-2006 is hereby recalled. The suit is restored to its original stage when it was dismissed in default on 4-12-2006.