Petitioners should be given chance of hearing
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This case arose from a suit for specific performance of an agreement to sell land, filed by Muhammad Usman against Major Pervez Shakoor and four others. When the defendants failed to appear, the suit was decided against them ex-parte. They applied to have that ex-parte decree set aside, but this application itself was later dismissed for non-prosecution because they again failed to appear. They then filed a further application seeking restoration of their original application, explaining that they lived in Karachi and were unaware of the hearing date, and that their lawyer was occupied with election-related work at the time, so their absence was unintentional.
The trial court rejected this restoration application without framing any issue or giving the petitioners a chance to prove their explanation, and the appellate court upheld this decision. The petitioners then approached the Lahore High Court.
The High Court held that the petitioners had provided reasons for their non-appearance and were entitled to a proper opportunity to prove those reasons through evidence. Since no issue was framed and no such opportunity was given, the rejection of their application was arbitrary and could not be upheld.
The court accepted the petition, set aside the lower courts' orders, and sent the case back to the trial court to decide the restoration application afresh, after framing issues and letting both sides present evidence. This case highlights the basic fairness principle that litigants must be heard before being penalized.
یہ مقدمہ زمین کی فروخت کے ایک معاہدے پر مخصوص کارکردگی (specific performance) کے دعوے سے شروع ہوا، جو محمد عثمان نے میجر پرویز شکور اور چار دیگر افراد کے خلاف دائر کیا تھا۔ جب مدعا علیہان پیش نہ ہوئے تو مقدمہ ان کے خلاف یک طرفہ (ex-parte) طور پر فیصل کر دیا گیا۔ انہوں نے اس یک طرفہ ڈگری کو کالعدم قرار دلوانے کے لیے درخواست دی، مگر یہ درخواست بھی بعد میں عدم پیروی (non-prosecution) کی بنا پر خارج کر دی گئی کیونکہ وہ دوبارہ پیش نہ ہو سکے۔
اس کے بعد انہوں نے اپنی اصل درخواست کی بحالی کے لیے ایک اور درخواست دائر کی، جس میں وضاحت کی گئی کہ وہ کراچی میں رہائش پذیر تھے اور انہیں سماعت کی تاریخ کا علم نہیں ہو سکا تھا، اور یہ کہ اس وقت ان کا وکیل انتخابات سے متعلق کام میں مصروف تھا، اس لیے ان کی عدم حاضری غیر ارادی تھی۔
ٹرائل کورٹ نے یہ بحالی کی درخواست بغیر کوئی فریق (issue) مرتب کیے اور درخواست گزاروں کو اپنی وضاحت ثابت کرنے کا موقع دیے بغیر مسترد ک
Generated from the full judgment text below — not a substitute for reading the actual opinion.
PLJ 1991 Lahore 165 Present: muhammad MuxiR khan, J Maj. PERVEZ SHAKOOR and 4 others-Petitioners versus MUHAMMAD USMAN-Respondent. Civil Revision No.1.831 of 1990, accepted on 2.10.1990. Civil Procedure Code, 1908 (V of 1908)-- —-O.IX R.l3-Expa>U> decree-Setting aside of-Application for-Dismissal in default of-Application for restoration-Dismissal of-Challenge to-Petitioners have stated reasons in their restoration application for their and their counsel's non-appearance-They were entitled to substantiate same-Neither any issue was framed nor petitioners were given opportunity to prove cause of their non- appearance and application was arbitrarily rejected—Held: Manner in which trial court has disposed of application of petitioners, cannot/should not be approved by High Court-Petition accepted and case remanded to trial court for fresh decision of restoration application. [P.166JA&B Cii. Inayatullah, Advocate for Petitioners. Mr. Hassan Ahmad Khan Kanwai; Advocate for Respondent. Date of hearing: 2.10.1990. judgment On 7.11.1985 Muhammad Usman respondent filed a suit for Specific Performance of agreement to sell of land measuring 235 kanals and 6 marlas situate in village Kalekey, Tehsil Depalpur District .Okara against Major Pervez Shakoor and 4 others, petitioners/defendants, in the Court of Civil Judge Depalpur. The suit was decreed exparte on 11.3.1987. The petitioners/defendants filed application for setting aside the ex-pane decree which was dismissed on 12.11.1988 for non prosecution. On this, the petitioners made application 'for restoration of the application filed by them under Order IX Rule 13 C.P.C. for the setting aside (of) the ex-parte decree. It was stated in this application that the petitioners were residents of Karachi and were not aware of the date of hearing, i.e. 12.11.1988 and their counsel was busy in the election and the Courts were also busy in the election work and as such the default in appearance was not deliberate. This application was contested. The learned Civil Judge, without framing any issue or affording the petitioners/applicants opportunity to substantiate the cause for their non appearance on 12.11.1988, dismissed this application vide order dated 17.4.1989. The appeal filed by the petitioners against this order was dismissed by the learned Additional District Judge Okara on 25.3.1989, hence this revision.
2. Learned counsel for the petitioners mainly contended that the petitioners have been condemned without giving them opportunity to substantiate the cause for their non appearance on 12.11.1988. Learned counsel for the respondent has supported the impugned orders.
3. I have considered the matter carefully. I feel persuaded to agree with the learned counsel for the petitioners. I find that in their application for the restoration of their application for setting aside the exparte decree, the petitioners have stated the cause of their non appearance and the cause of the non appearance of their counsel as well. I feel that if these causes are believed to be true then the same do constitute sufficient cause for their non appearance on 12.11.1988 and as such, the petitioners were entitled to an opportunity to substantiate it. Strangely enough, neither any issue was framed nor they were given any opportunity to prove the cause of their non appearance and the application was arbitrarily rejected. The manner in which the learned trial Court has disposed of the application of the petitioners cannot/should not be approved by this Court. Resultantly, the judgment of the learned Applellate Court cannot sustain. Pursuant to the above discussion, the revision is accepted. The impugned orders of the Courts below are set-aside and the matter is sent back to the trial Court for fresh decision of the application of the petitioners for the restoration of their application for setting aside the ex-parte judgment and decree, after framing issues and affording the parties opportunity to lead evidence. The parties shall bear their own costs. (MBC) Revision Accepted.