PLJ 2007
Present: Maulvi Anwar-ul-Haq, J.
Mst. MUBASHRA RIAZ--Petitioner
versus
Mst. ALIA SHAHZADI and 4 others--Respondents
C.R. No. 476 of 2007, heard on 26.4.2007.
Civil Procedure Code, 1908 (V of 1908)--
----O.XXII, R. 3 & S. 115--Limitation Act, (IX of 1908), S. 5--Seeking for--Declaration and cancellation of gift--Question of--Filing of amended plaint--Dismissed by Courts below--Civil revision--Without jurisdiction--Sufficient cause for condonation of delay--Plain reading of records--First instance was lunatic and in second was dead--Trial Court to bring on record the LRs when the list had been filed--Neither the parties nor the Civil Judge was present while only counsel for defendant was present--Plea was taken by petitioner that she was not aware of the passing of such order by civil judge and acquired knowledge at a later point of time, is absolutely plausible--Even otherwise, suit was dismissed by the Court below itself constitute a sufficient cause for condonation of delay--Held: Impugned orders and decrees attract mischief of Section 115 CPC--Petition allowed. [P. 939] A & B
Mr. Amjad Pervaiz Chaudhry, Advocate for Petitioner.
Ch. Muhammad Maqsood Ahmad, Advocate for Respondent
No. 1.
Nemo for other Respondents..
Date of hearing: 26.4.2007.
Judgment
On 4.9.1994, Mst. Wazir Begum, predecessor in interest of the petitioner and Respondents No. 2 to 5 (hereinafter to be referred to as plaintiff), filed a suit against the Respondent No. l seeking declaration and cancellation of a gift purported to have been made by her in favour of Respondent No. 1 qua 1/2 share of the suit house. Respondent No. 1 was served. She filed written statement. Issues were framed on 16.5.1996. Evidence of three witnesses was recorded. On 5.10.1998, it was reported that the plaintiff has lost balance of mind and proceedings are being filed before the learned District Judge. On 25.11.1998, on the request of both the parties, the proceedings were adjourned sine die till such time that the proceedings before the learned District Judge are concluded. On 29.01.2001, the plaintiff through her guardian. Qamar Riaz, filed an application, informing that learned District Judge has appointed Qamar Riaz as guardian of Mst. Wazir Begum vide order dated 10.6.2000. The files were requisitioned and proceedings were commenced. It appears that the examination in chief of the witnesses, produced by the plaintiff, had been recorded and the case was being adjourned for recording cross-examination by the Respondent No. 1. On 23.11.2002, it was reported that the plaintiff has died. The case was adjourned for filing of death certificate and the list of LRs. On 25.4.2003, a copy of death certificate was produced and thereafter the case was adjourned for filing of list of LRs. On 6.3.2004, it was noticed that the list of LRs has been filed. A direction was issued for filing of amended plaint. The case was so being adjourned. On 23.6.2005, learned Presiding Officer was absent and the case was adjourned by his office to 28.6.2005. On 28.6.2005, the following order was recorded by the learned trial Court :--
"28.6.2005 Present: Counsel for the defendants.
Neither the plaintiff is present nor she has filed amended plaint. As the filing of amended plaint is necessary for further progress of the suit. Repeated opportunities were granted to the plaintiff for filing of amended plaint but she has failed to do so. Therefore, the suit is hereby dismissed under Order 17 Rule 3 CPC. No order as to costs. File be consigned to the record room after its completion.
Announced 28.6.2005."
Against the said order and the decree of dismissal, first
appeal was filed by the petitioner who is plaintiff's son's daughter. This
appeal was filed on 18.10.2005. The appeal was accompanied by an application
under Section 5 of Limitation Act for condonation of delay. The appeal and the
application were contested by Respondent No. 1. Learned ADJ.,
2. Learned counsel for the petitioner contends that the order passed by the learned trial Court dismissing the suit under Order 17 Rule 3 CPC is wholly without jurisdiction. According to him, the plaintiff was admittedly dead and the learned Civil Judge punished a dead lady and that too for no fault. Learned counsel for the Respondent No. 1 has vehemently opposed the said contentions. According to him, notwithstanding the fact that in the first instance the plaintiff-lady had been rendered lunatic and then she died, the LRs including the petitioner were aware of the pendency of the suit and as such learned Civil Judge in fact had punished the said LR for not filing amended plaint and this was legal and permissible. Similarly, he argues that the proceedings and the said order of me learned trial Court being within the knowledge of said LRs, delay in filing of appeal could not be condoned.
3. I have gone through the copies of the records appended with this C.R. as also those filed by the learned counsel for the respondent. I have stated the details of the proceedings above after examining the same. I may state in the very beginning that although learned District Judge had declared the plaintiff to be a lunatic and had appointed a guardian who had applied for revival of the suit yet I do not find any amended plaint on record describing the said status of the plaintiff-lady and it is evident from the contents of the decree sheet where it has not been mentioned that Mst. Wazir Begum, plaintiff is suing through guardian appointed by learned District Judge. Be that as it may, coming to the impugned order, I have already reproduced above the said order which is rather brief. Learned Civil Judge has expressed that the plaintiff is not present nor she has filed an amended plaint. Reference Obviously is to the woman regarding whom it was reported as far back as on 23.11.2002 that she has died and whose death certificate was examined by the Court on 25.4.2003 and further whose list of LRs had been filed on 6.3.2004. Thereafter learned trial Court has observed that filing of amended plaint was necessary for further progress of the suit. Learned Civil Judge appears to be completely oblivious of the provisions of Order 22 Rule 3 CPC. Once list of LRs was on record, it was the duty of Court to have issued notice to the said LRs. Both the learned counsel state that no fresh power of attorney was filed on record by any Advocate after death of the plaintiff-lady. Even if it was not deemed proper by the Court to issue notice to the LRs, then the suit could have been proceeded with in terms of Order 22 Rule 3(2) CPC. Thereafter the learned trial Court has stated that the suit is dismissed under Order 17 Rule 3 CPC. There is no concept of dismissal or decretal of a suit under Order 17 Rule 3 CPC. Under the said provisions of Law, if conditions mentioned therein exist the Court has to proceed to decide the suit forthwith. Of-course, the suit has not at all been decided. Last but not the least, learned trial Court completely forgot that the case was adjourned to 28.6.2005 only for the reasons that he was absent on the previous date and not at the request of any of the parties. Thus from what ever angle seen, the suit could not at all have been proceeded under Order 17 Rule 3 CPC. The said order and the decree of dismissal of suit is, therefore, wholly without lawful authority. Learned Court of appeal has stated in para-3 of the impugned judgment dated 9.1.2007 that it has perused the records. I find this statement to be incorrect. What to speak of records,
learned ADJ does not appear to have even read the order that was impugned before him, otherwise, he would have never sustained it.
4. Upon a plain reading of the records, the plaintiff in the first intence was lunatic and in the second was dead and buried long before 28.6.2005. It was for the learned trial Court to bring on record the LRs when the list had been filed. This was not done. It is a further matter of record that on 23.6.2005, neither the parties nor the learned Civil Judge was present while on 28.6.2005 only learned counsel for the defendant was present. The plea taken by the petitioner that she was not aware of the passing of the said order by the learned Civil Judge and acquired knowledge at a later point of time, is absolutely plausible. Even otherwise, the manners in which the suit was dismissed by the learned trial Court itself constitutes a sufficient cause for condonation of delay.
5. Having thus
examined the records, I do find that the impugned orders and decrees attract
mischief of Section 115 CPC. C.R. accordingly is allowed. Both the impugned
orders and decrees are set aside. Result would be that the suit shall be deemed
to be pending before the learned Senior Civil Judge,
6. No orders as to costs.
7. A copy of this judgment to be remitted to the, learned trial Court immediately by the office.
(N.F.) Revision allowed.