MUHAMMAD ANWAR Versus MUHAMMAD SHARIF

1. MUHAMMAD AFZAL ZULLAH, C.J.-- -This appeal through leave of the Court is directed against the judgment of the Peshawar High Court; whereby the appellants' Civil Revision arising out of dismissal of suit for non -prosecution was disposed of with the following order:--

2. "Mst. Rafia Begum (now represented by Muhammad Anwar plaintiff/petitioner) had brought a suit for partition of the property as fully described in the heading of the plaint. The suit was contested, a number of issues were framed and certain evidence from the plaintiff- petitioner's side was recorded and the case was adjourned to 14-4-1977 for recording the statement of the plaintiff-petitioner. On the said date, the plaintiff-petitioner did not appear. The respondents were present, therefore, the suit was dismissed under Order 9, Rule 8 of the Code of Civil Procedure by the Senior Civil Judge, Kohat vide order, dated 14-4-1977.

3. An application was submitted by the plaintiff-petitioner for setting aside the ex parte order on 16-4-1977 and the ground taken by the petitioner was that he had gone to Tarbela in connection with his private work and there fell ill, therefore, he could not attend the Court on 14-4-1977 and a telegram to that effect was sent to the Court and prayed that ex parte order be set aside. This application was again resisted by the respondents and the learned trial Court after recording the evidence of the parties rejected the application of the petitioners. The appeal of the petitioners before the learned Additional District Judge also fails hence this revision petition.

4. "I have heard the learned counsel for the petitioners and gone through the record of the case. The perusal of the record shows that the petitioner had sent a telegram to the Court of Senior Civil Judge 13-4-1977 but this would not enough because there is no posit evidence to the effect that the petitioner had in fact fallen ill at Tarbela and was seriously ill that he could not travel from Tabela to Kohat. In this view of the matter, I think the Courts below were right in disallowing the restoration of the suit."

5. Leave to appeal was granted to examine the contention whether or the facts of the case the dismissal of petitioners' suit on 14-4-1977 by the trial Court was not warranted under Order IX, Rule 8 of the Code of Civil Procedure as the provision of Order XVII, Rule 2 of the C.P.C. alone was attracted.

6. The order passed by the trial Court and upheld upto the High Court reads as follows:---

7. Sd/ --------X ---------- X.

8. S. C. J., Kohat

9. "14-4-77

10. Learned counsel for the respondents has raised a preliminary objection. According to him when the learned trial Judge took cognizance of and tried the suit he was acting as Family Court. He has given the reasons in support of this assertion. That being so, according to him, although an appeal was competent against the order of the Family Court, the High Court was not competent to hear a revision against the order of Family Court, affirmed in appeal. Accordingly, the High Court had no jurisdiction to entertain the revision which being incompetent was liable to be dismissed on this short jurisdictional ground.

11. Learned counsel for the appellants vehemently protested against this late technical objection. He stated that the same having not been raised/pressed earlier he had no notice to answer it and the appeal being of 1983, he otherwise would not be granted adjournment therefore he requested for overruling the objection on the ground of it being belated.

12. However, after having heard both the learned counsel on the preliminary objection we feel that if it would have been raised before the High Court, on the assumption that it is based on actual facts, the High Court could have converted the revision petition into a writ petition which, it is not disputed, was competent to do so. It is also not denied what the High Court could do, the same can be granted by this Court while hearing the appeal. The remand at this stage to the High Court for this technical correction is not justified. Accordingly, on the facts stated by the learned counsel for the respondents we convert the Revision Petition into a Constitutional (writ) Petition. The order of the High Court impugned before this Court is such that this conversion would not have made any difference regarding the pith and substance thereof.

13. Arguing on merits learned counsel for the appellants contended that the previous husband of the plaintiff/predecessor-in-interest of the appellants having given her the property in question, the respondents' side wants to grab it. This aspect of the case containing the brief assertion regarding the parties position, is not much relevant except that the suit was filed by a female and the general principles with regard to the dealing with a female's grievance as held in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi P L D 1990 SC 1 (by and large) are to be attracted in so far as the procedural aspects are concerned. The mere fact that she was and is represented now by her successors-in-interest will not make any difference because if she would have succeeded, the same would have been on the basis of her rights and not on account of anything special about her successors-in-interest.

14. We, accordingly, would make no comment with regard to the facts of the case which might be of any determinative character because it might prejudice any party.

15. Learned counsel for the appellants took us through the order sheet and contended that some evidence of the appellants having been recorded the law as contained under Order XVII Rule 2, C.P.C. permitted the learned trial Judge to follow one of the several courses available there under (Order XVII Rule 2 of the Civil Procedure Code). The fact that the learned Judge followed the one permissible under Order IX Rule 8, C.P.C. which is of mandatory/penal character, should not have been applied.

16. Learned counsel for the respondents/caveator on the other hand contended that the trial Judge having acted as Family Court, he had option under Rule 12 (of the relevant Rules governing the procedures of the Family Courts) to dismiss the suit, for non-prosecution.

17. Thus, whether acting as Civil Court or as Family Court the learned Judge under Order XVII, Rule 2, C.P.C. or Rule 12, had the option in the former capacity either to dismiss the suit for non-prosecution or not to dismiss it and grant more time to the plaintiff by adjourning it; and while acting in the latter capacity had the same option and thus there was no compulsion while acting under any of these provisions to dismiss the suit for non-prosecution.

18. Unfortunately on the contrary the learned Judge felt though wrongly that he had only one option of proceeding under Order IX, Rule 8, C.P.C. and where under also he had no other option but to dismiss the suit for non -prosecution. This approach of the learned trial Judge, with respect, was erroneous. While his mind remained rigid about the scope of his jurisdiction as if he had no power to act in any manner other than what was directed under Order IX Rule 8, C.P.C. in reality he had option not to act on it even if he was dealing with the case as a Civil Court. As Family Court he was not even bound by this provision of the C.P.C.; and under Rule 12, as pointed out by the learned counsel he had the option not to dismiss the suit for non-prosecution. This conceptual misunderstanding on the part of the learned Judge obviously led to miscarriage of justice. The plaintiff has been non-suited without the trial of her suit. Accordingly, this appeal is allowed with costs throughout.

19. The case is remanded to the learned trial Court for decision in accordance with law. It may be clarified that the assumption made by the Court regarding the fact that the trial Court had acted as Family Court is based on the learned counsel for the respondents' confident assertion in this behalf. If, however, it was a suit being tried by the trial Court as a Civil Court even then the present order would remain intact and operative and the provisions relevant to Betting aside the High Court judgment as in that case as a revisional judgment, would be Order XVII, R.2, C.P.C. and not the Rule 12 framed under the Family Courts Act. It is further noted that there was some suggestion as if array of parties was not complete before this Court. If that is so the learned trial Court would do the needful in bringing on record all the parties concerned. The question of limitation in this case in the circumstances narrated above, would not arise.

20. M.B.A./M-1629/S Order accordingly.