Syed Muhammad Shafi vs Muhammad Khalid Rafiq & others
This matter concerns a petition for leave to appeal against an order passed by the High Court of Sindh, which reduced a decretal amount in the petitioner's absence. The core legal question was whether the High Court acted correctly in deciding a petition on its merits when the petitioner was absent due to circumstances beyond their control, rather than dismissing the matter for non-prosecution. The Supreme Court held that the High Court erred in adjudicating the merits of the case in the absence of the petitioner. The Court established the principle that when a party is absent, the appropriate course of action for a court is to dismiss the petition for non-prosecution rather than deciding the case on its merits. Consequently, the Supreme Court dismissed the current petition but granted the petitioner liberty to file an application before the High Court to recall the impugned order, directing the High Court to consider such an application sympathetically, particularly regarding any delay in filing.
- Can a High Court decide a petition on its merits in the absence of the petitioner?
- Is dismissal for non-prosecution the correct procedure when a petitioner fails to appear?
- Should a court consider an application for recalling an order passed in the absence of a party sympathetically?
ORDER
' KHILJI ARIF HUSSAIN, J. --- Petitioner seeks leave aggrieved by the order dated 12.8.2011 passed by Division Bench in C.P. No. D-2679 of 2010 of High Court of Sindh, Karachi, whereby learned High Court on the basis of statement made by respondent reduced the decretal amount from Rs.
3,38,000/- to Rs. 3,08,000/-.
2. It is contended by the petitioner that order was passed in his absence and petition filed by him was disposed of without providing opportunity of hearing to him. He further contended that on the date when his petition was listed for hearing, the project in which he is residing was surrounded by law enforcement agencies and he was not able to appear before the Court at the time when matter was called. It is contended that the High Court cannot decide the petition on merits in the absence of petitioner. He further contended that various aspects which he wanted to place before the High Court could not be placed as the petitioner was not present.
3. We have gone through the impugned judgment as well as memo. Of petition. We are of the view that when petitioner was not present the High Court could not decide the case on merits but dismiss the same for non-prosecution. Petitioner stated that he would like to file an application for recalling the orders and not press the listed petition if the High Court is directed to take into consideration all aspects of matter and delay in filing the application may be taken into consideration sympathetically.
4. In the circumstances, while dismissing the petition it is expected that petitioner, if files any application for recalling the order dated 12.8.2011 which was passed in his absence, the High Court will pass appropriate orders on it and delay, if any, may be considered sympathetically.