ARSALA KHAN and another vs GULFAM and others
This matter arises from a civil dispute where a suit for possession filed by respondent No. 1 was initially dismissed by the trial court, but subsequently decreed in his revision petition by the Additional District and Sessions Judge on 27-4-2006. The petitioners challenged this decree through a writ petition before the Peshawar High Court, which was dismissed on merits on 5-6-2008 in the absence of the petitioners or their counsel. The petitioners approached the Supreme Court of Pakistan, contending that their counsel was indisposed and unable to appear, which prejudiced their case. During the hearing before the Supreme Court, respondent No. 1 fairly consented to a remand. The Supreme Court converted the petition into an appeal, set aside the impugned judgment of the High Court, and remanded the matter for a fresh decision on merits in the presence of both parties, directing the High Court to expedite the disposal of this long-pending litigation within one month.
- Whether a writ petition can be decided on merits in the absence of the petitioner or their counsel due to indisposition?
- Can an appellate court remand a matter to the High Court for fresh decision with the consent of the parties?
ORDER
' M. JAVED BUTTAR, J.--- Suit for possession instituted by respondent No,1 was dismissed by the trial Court, his revision petition was allowed by the Additional District and Sessions Judge-X, Peshawar on 27-4-2006 and the suit was decreed in his favour. Writ Petition No,801 of 2006 instituted by the petitioners came up for hearing on 5-6-2008 and the learned Judges of the High Court, seized of the petition, decided to proceed and decide the petition on merits in the absence of the petitioner or his counsel because on the previous date of hearing both the parties had agreed for addressing arguments on 5-6-2008 and learned Judges in their wisdom opted not to dismiss the petitioners' writ petition for non-prosecution and dismissed it on merits on the same date i,e, 5-6-2008.
2. We have heard the learned counsel for the parties and have seen the available record. It has been brought to our notice by the learned counsel for the petitioners that the petitioners' learned counsel had tried to move an application for adjournment due to his indisposition, but the same was not entertained and was returned and the said learned Advocate Supreme Court is ready to give an affidavit. In these circumstances and on being pointed by this Court that absence of their counsel may have prejudiced the petitioners, the learned counsel representing respondent No, l/plaintiff has very fairly stated that let the matter be remanded to High Court for fresh decision in presence of both the parties. He, however, insists that the writ petition should be decided within one month because the plaintiff is out of possession since 1982.
3. In view of the above mentioned, this petition, with the consent of the learned counsel for the parties is converted into appeal and allowed. The impugned judgment, dated 5-6-2008, passed by a Division Bench of Peshawar High Court, is set aside and the writ petition is directed to be decided afresh which shall be deemed to be pending before the said Court. Since it is a very old matter, the Registrar of Peshawar High Court is directed to solicit special orders from the Chief Justice of the said Court for decision of the writ petition within one month. There is, however, no order as to cost.
The office is directed to do the needful immediately.