KHURSHID AHMAD AND Another vs SULTAN KHAN AND Other
This matter originated as a petition for leave to appeal against an order of the Lahore High Court, which had dismissed the petitioners' review application concerning a previously dismissed revision petition. The revision petition had been dismissed for default due to the petitioners' non-appearance on the scheduled date of hearing. The petitioners sought to challenge both the dismissal of the revision petition and the subsequent dismissal of their review application, which had attempted to re-argue the merits of the original revision. The core legal question was whether the petitioners had demonstrated sufficient cause for their non-appearance and whether the High Court correctly dismissed the review application. The Supreme Court held that the petitioners' assumption that the case had been adjourned to the following week rather than the specific date fixed by the court did not constitute sufficient cause for absence. Furthermore, the Court affirmed that a review application cannot be utilized to re-argue the merits of a case already decided. Consequently, the petition was dismissed, reinforcing the principle that review jurisdiction is limited and cannot serve as an appeal.
- Does a counsel's mistaken assumption regarding the date of a hearing constitute sufficient cause for non-appearance?
- Can a review application be used to re-argue the merits of a revision petition that was dismissed for default?
- Is a review application maintainable when the underlying revision petition was dismissed for default due to the petitioner's absence?
- Order IX Rule 2, Code of Civil Procedure 1908
- Order XLVII Rule 1, Code of Civil Procedure 1908
ORDER
1. FAKHRUDDIN G. EBRAHIM, J.-The facts giving rise to this petition are that a revision petition filed by the petitioners was posted for hearing before- a learned Single Judge in the Lahore High Court on 9-4-1975 but it was adjourned to 11-4-1975 for want of time. The petitioners did not appear on that date -and the revision petition was dismissed. This revision was directed against an order made by the trial Court refusing to restore the petitioners' pre-emption suit dismissed for default on the ground that restora--tion application was barred by time. An Additional District Judge bad affirmed that order in appeal.
2. While dismissing the petitioners' revision, the High Court also affirmed the view that the petitioners' application for setting aside the order dismissing the suit, was barred by time. The petitioners then filed a review application in the High Court presumably to set aside the order dated 11-4-1975 on the ground that there was sufficient cause for their absence. They also sought to re-agitate the question that their application under Order IX, rule 2 for restoration of the suit was not barred by time. This review application was dismissed on 22-5-1975.
3. The present leave petition was filed on 7-8-1975 and it is, therefore, obvious that in so far as the order dated 11.4-1975 is concerned, it is barred by time. The sole question, therefore, for consideration in this petition is whether the High Court was right in dismissing the review application vide its order dated 22-5-1975. This review application, in fact, sought the restoration of the petitioners' revision petition dismissed in default by the High Court on 11-4-1975 and, therefore, the petitioners had to demonstrate that they had sufficient cause for their non-appearance on 11- 4-1975. The only cause mentioned for non-appearance on 11-4-1975 is that though the revision petition was fixed for hearing on 9-4-1975 and not taken up on that date was adjourned to 11-4- 1975, the petitioners' counsel took it for granted that the case had been adjourned to the next week and not to 11-4-1975. We cannot regard this as sufficient cause for the petitioner absence on 11-4- 1975. Even if the review application is not regarded as limited to one seeking restoration of the revision petition dismissed on 11-4-1975, we find from the review application as well as the order made in review that the petitioners had in fact attempted to re-argue the revision, which was not permissible under Order XLV11, rule 1, C. P. C. In either event the petitioners cannot be said to have any grievance.
4. This petition is therefore, dismissed.