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Official Citation: 2024 CLC 1105
Court / Jurisdiction: Sindh High Court
Year of Decision: 2023
Decision Date: 2023-05-23
Parties: Gulshan Bibi and another vs Saddar Din and others
Ruling Summary: This decision was rendered by the Sindh High Court on 2023-05-23, officially reported as 2024 CLC 1105. In this matter between Gulshan Bibi and another and Saddar Din and others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 CLC 1105
Court Name: Sindh High Court Judge(s): Irshad Ali Shah, Arbab Ali Hakro Title: Gulshan Bibi and another vs Saddar Din and others Case No.: Constitutional Petition No.D-62 of 2023 Date of Judgment:2023-05-23 Reported As: 2024 CLC 1105 Result: Order accordingly
Judgment
ORDER ARBAB ALI HAKRO, J. The facts in brief necessary for disposal of instant petition are that the petitioners were made ex-parte and debarred from filing their written statement by learned Senior Qivil Judge, Kandhkot in F.C. Suit No.364/2017 which was pending in his Court, vide order dated 26.02.2022, which they sought to be set aside by filing an application under Order IX, Rule 7, C.P.C.; it was dismissed by him vide order dated 14.12.2022, which they impugned by filing civil revision application; it was dismissed by learned District Judge/MCAC, Kashmore @ Kandhkot, vide order dated 25.01.2023, which is impugned by them before this Court by way of instant petition. It is contended by learned counsel for the petitioners that valuable rights of the petitioners are involved in the subject litigation; therefore, they ought not to have been dislodged from the contest by learned Courts below on the basis of technicalities. By contending so, he sought for setting aside of the impugned order with direction to learned trial Court to accept written statement of the petitioners and to proceed with the case further in accordance with law. Learned Addl. A.G. was fair enough to say that the right of contest could not be denied to the petitioners. However, they on account of their negligence as token of caution be imposed cost prior to filing of their written statement before learned trial Court. None has appeared on behalf of the respondents Nos.1 and 4. However, learned counsel for rest of the private respondents by supporting the impugned order has sought of dismissal of the instant petition by contending that the petitioners have failed to file their written statement within time prescribed by law and the very application for setting aside of ex-parte order was time barred, as such it has rightly been dismissed by learned Courts below.
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Heard arguments and perused the record. Admittedly, the suit is still pending on the file of learned trial Court; the valuable rights of the petitioners are said to be involved in the subject litigation; therefore, in such situation, it would be unjustified to dislodge them from the active contest on the basis of technicalities, which obviously is against the mandate contained by Article 10-A of the Constitution of Islamic Republic of Pakistan, which prescribes right of fair trial to everyone. If the petitioners are permitted to file the written statement then it would not only meet with the ends of justice but would help learned trial Court to arrive at right conclusion. Even otherwise, no time has been prescribed either in Civil Procedure Code or Limitation Act for setting aside of the ex-parte order, therefore, the cause of the petitioners could not be defeated on point of limitation; it obviously was to be governed by Article 181 of Limitation Act, 1908, which prescribes period of three years for filing such application when the right to apply occurs. In case of Wali Muhammad v. Hakeem Muhammad Khan and others (1993 MLD 1101), it has been held by division bench of this Court that; "As we find ourselves in agreement with the contention raised by Mr. Zahid Marghoob that no period of limitation is provided under any law for making an application under Order IX, rule 7, C.P.C. by the defendant, in such a case only Article 181 of the Limitation Act would be applicable which provides for a period of three years for filing of such application." In view of above, the impugned order is set aside; consequently, the petitioners are permitted to file their written statement in the aforementioned suit before learned trial Court within 30 days, hereinafter, after making payment of Rs.10,000/- to the plaintiff as cost, the moment the written statement is filed by the petitioners, the case to be proceeded further in accordance with law by learned trial Court. The instant petition is disposed of accordingly, with no order as to costs.