SYED AFZAL HUSSAIN Versus MUHAMMAD AMIN
Through this revision application under section 115, C.P.C., applicant Syed Afzal Hussain has assailed the order, dated 10‑3‑2001 passed by learned II‑Additional District Judge, Karachi, West whereby the application under Order IX, rule 9 read with section 151, C.P.C. filed by the applicant for setting aside the judgment/decree, dated 10‑8‑2000 was dismissed. Prayer has been made for setting aside the said order as also the judgment/decree, dated 10‑8‑2000.
2. Relevant facts and circumstances leading to this revision, concisely stated, are that respondents Muhammad Amin and Ms. Zubeda filed a suit for specific performance of contract against applicant Syed Afzal Hussain on the basis of an agreement to sell allegedly executed on or about 11‑4‑1991 for a consideration of Rs.2,20,000 in respect of house built on Plot No.80 (Old N.o.1135/754) Survey Sheet No.1 in Anjam Colony, Baldia Town, Karachi: The applicant resisted the suit and filed written statement where-after issues were framed and the parties led evidence thereon. Learned II‑Senior Civil Judge dismissed the suit on 5‑11‑1999. The respondents preferred an appeal under section 96, C.P.C. of which notice was served on the applicant. The hearing was adjourned from time to time and on 10‑8‑2000 when the matter came up, for hearing the Advocate for applicant/respondent remained absent. The learned 1st Appellate Court heard the learned counsel for respondents/appellants and after discussing the evidence on record allowed the application and set aside the judgment/decree of the trial Court; as a result, the original suit for specific performance of the contract stood decreed, as prayed, with costs.
3. The applicant filed an application under Order IX, rule 9. C.P.C. for setting aside the appellate order, dated 10‑8‑2000 taking the ground that actually the appeal was not fixed on 10‑8‑2000 but on 24‑8‑2000. The application was supported by affidavit of learned counsel Mr. Muhammad Alim Malik who, stated in para. 2 thereof as under:‑‑
"2. I say that I appeared in this Honourable Court on 20‑7‑2000 for hearing of the appeal but due to the absence of the learned Advocate for the appellant the appeal was adjourned to 24‑8‑2000 which is on the record."
4. Learned Additional District Judge, after hearing learned counsel for parties, dismissed the application for restoration of appeal.
5. From the documents placed on record in this revision it transpires that on 20‑7‑2000 Advocate for respondent (applicant herein) made an application for adjournment on which the learned Additional District Judge passed an order allowing the adjournment as last chance and fixed the hearing on 3‑8‑2000. A photostat certified copy of this application has been produced by the applicant himself. A copy of the case diary has also been produced which runs as under:‑‑
"20‑7‑2000. Case called. Parties Advocates are present. Advocate for the respondent filed application for adjournment. Order passed on it. As last chance adjournment allowed. Case put off to 3‑8‑2000 for hearing.
(Sd.) IInd Additional District Judge,
Karachi West."
6. Indeed, the abovementioned two documents confirm the fact that on 20‑7‑2000 application was made by the Advocate for applicant for adjournment which was granted as last chance and the next date was fixed as 3‑8‑2000. The diary also states that Advocates were present when the application was disposed of. As against this, the applicant had taken an inconsistent stand in his application under Order IX, rule 9, C.P.C. stating that on 20‑7‑2000 the matter was adjourned because of absence of the Advocate for appellants (respondents herein). Para. 2 of the affidavit of learned Advocate is also on the same lines but the record of the Court speaks otherwise. At least the application for adjournment bears the signatures of learned counsel establishing thereby in an unambiguous terms that he made an application for adjournment. There was no reason to conceal this fact. It is a consistent practice that when an application is made for adjournment the maker thereof considers it, his bounden duty to know the fate of the application even if at the first call it is not disposed of, but in the instant case the explanation regarding the circumstances under which the case was adjourned is altogether different and irreconcilable and as such cannot be accepted.
7. Mr. M. Shafi Muhammadi, learned counsel for applicant made reference to the copy of the cause list maintained by the Appellate Court which bears overwriting in respect of this appeal, to contend that on 20‑7‑2000 the matter was adjourned to a date other than 10‑8‑2000. This plea seems to be not well‑founded. It is to be acknowledged that the writings on the cause list do not bear authenticity over and above the regular Court record. No capital could, therefore, be made from overwriting, if any. The contention is, thus, without force.
8. Nevertheless, it may be mentioned that this is a revision application and the jurisdiction to be exercised under section 115, C.P.C. has a limited scope. The facts and circumstances enumerated above do not demonstrate any illegal exercise of jurisdiction or lack of exercise of jurisdiction or any material irregularity. The impugned order does not suffer from any perversity and on the contrary it is made out that the applicant himself is to be blamed for his conduct in remaining absent on the crucial date. Notwithstanding the aforesaid legal position it would not the out of the place to mention that the appeal has been decided on merits and not on any technical ground. On the whole, there is no ground to invoke provisions of section 115, C.P.C. The application is without merits, consequently, the same is dismissed in limine with no order as to costs.
Q.M.H./M.A.K./A‑287/K Revision dismissed.