Khurshed Ali Khan vs Muhammad Ayub and others
The petitioner filed a civil suit which was subsequently dismissed for non-prosecution when the plaintiff failed to appear on the date fixed for evidence, despite the defendants being present. A belated restoration application accompanied by an application for condonation of delay was dismissed by the trial court for insufficient grounds, and the appellate court upheld this decision. The core legal question before the Supreme Court was whether a suit could be dismissed for non-prosecution on a date fixed for hearing when other miscellaneous applications were also pending. The Supreme Court held that once issues are framed, the suit becomes ripe for hearing, and it is well within the trial court's discretion to dismiss the suit for non-prosecution upon the plaintiff's default on such a date, regardless of pending incidental applications. The petition for leave to appeal was accordingly dismissed.
- Whether a suit can be dismissed for non-prosecution when other pending applications are listed on the same day?
- At what stage does a civil suit become ripe for hearing for the purpose of dismissal due to non-appearance?
- Whether the absence of a plaintiff on the date fixed for evidence warrants the dismissal of the suit for non-prosecution?
ORDER
Muhammad Shafi Siddiqui, J. Petitioner filed suit being No.97/1 on 30.07.2019 wherein issues were framed on 10.01.2020 and 11.09.2021. Impugned order disclosed that on 27.02.2023 when the matter was fixed for evidence it was adjourned to 29.03.2023 on account of absence of defendants/respondents.
2. On 29.03.2023 though defendants No.1 to 7 were present before Trial Court but no one for petitioner/plaintiff, which resulted in the dismissal of suit for non-prosecution.
3. Belatedly, a restoration application was filed on 23.05.2023 on the alleged illness of father of plaintiff, though counsel had marked his presence in the morning but did not appear later on the day of dismissal of suit. Grounds disclosed in the application were not found sufficient and consequently dismissed both the applications for condonation as well as restoration on 19.12.2023.
Appeal preferred but met the same fate before District Judge, Swat vide order dated 17.01.2024.
4. The time barred application did not provide any satisfactory reasons. Before us learned counsel took a fresh ground that suit in presence of other applications, which were pending should not have been dismissed.
5. We are afraid the argument of the learned counsel is not convincing. In the suit the issues were framed and the moment issues are framed in a suit, it (suit) become ripe for hearing.
Notwithstanding the listed applications on the fateful day, the suit has also listed for hearing as the issues have been framed and case was adjourned for evidence of petitioner/plaintiff. This argument therefore is not convincing that suit was not ripe for hearing or that it should not have been dismissed for non-prosecution and/or at the most the application fixed could have been dismissed. It is well within the discretion of court to dismiss the suit if it is ripe for hearing i.e. after settlement of issues. There is however a distinction between date of hearing of suit and date of appearance of parties before settlement of issues[1]. Later cannot be at par with date of hearing which is not the case here.
6. In view of the foregoing, we are not inclined to interfere with the impugned order. Therefore, leave to appeal is declined and consequently this petition is dismissed.
1. Abdul Latif v. Aqeel Ahmed (2006 SCMR 789).