KHURSHED ALI KHAN Versus MUHAMMAD AYUB
This matter concerns a petition for leave to appeal against the dismissal of a suit for non-prosecution and the subsequent refusal to restore it. The petitioner filed a suit in 2019, which proceeded to the framing of issues. On the date fixed for evidence, the petitioner failed to appear, leading the Trial Court to dismiss the suit for non-prosecution. A subsequent restoration application, filed with a significant delay, was dismissed by the Trial Court and the District Judge on appeal due to insufficient grounds. The core legal question was whether a suit, once issues are framed and fixed for evidence, can be dismissed for non-prosecution despite other pending applications. The Supreme Court held that once issues are framed, a suit becomes ripe for hearing. The Court affirmed that it is within the discretion of the trial court to dismiss a suit for non-prosecution when the plaintiff fails to appear on a date fixed for evidence, regardless of other pending applications. The Court concluded that the dismissal was proper and declined to interfere with the lower courts' orders.
- Can a suit be dismissed for non-prosecution once issues have been framed and the case is fixed for evidence?
- Does the presence of other pending applications prevent a court from dismissing a suit for non-prosecution when the plaintiff fails to appear on a date fixed for evidence?
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 Nos. 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 issues1. 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.
UN/K-4/SC Petition dismissed.