JETANDAR KUMAR and 2 others vs Mst. BIBI MEENA alias AMEERZADI through Legal Heirs

ORDER

The relevant facts forming background of this Revision Application are that a suit was filed on 7-5- 1996, by the plaintiff, Mst. Bibi Meena alias Ameerzadi, for declaration, cancellation of documents, possession and injunction. She expired on 15-3-1997, and on 3-5-1997 the suit was dismissed for non-prosecution. An application for restoration of the suit was filed on 27-5-1997 accompanied by affidavit of the sole legal heir Dost Muhammad, paternal nephew of the deceased plaintiff, which was allowed by the impugned order passed by learned 1st Senior Civil Judge, Tando Allahyar on 11- 2-1999, and the suit was restored.

2. Learned counsel for the applicant contended that a party is responsible for prosecuting his case and merely by engaging an Advocate he cannot be absolved of the liabilities accruing due to absence of the Advocate. He placed reliance on the authorities, Zulfiqar Ali v. Lal Din and another 1974 SCMR 162 and Shah Wali v. Allah Bakhsh 1999 CLC 45, in support of his contentions.

3. In view of the principle laid down in these authorities learned counsel submitted that negligence on the part of the Advocate may not be the only ground for dismissal of the suit, but actually the party had in this case failed to prosecute the matter.

4. Learned counsel for respondent No,1 submitted that the revision application under section 115, C.P.C. Is without merits, since essential ingredients of this provision of law are not satisfied.

According to him the suit was rightly restored and the impugned order is within the four corners of powers legally exercised by the Civil Court. He relied on the cases Aziz-ur-Rehman v. Government of N.-W.F.P. PLD 1996 Pesh. 51, Taj Muhammad v. Mst. Zaitooney 1996 MLD 1270 and Raja Abdul Hamid Khan v. Muhammad Naseem 1980 CLC 1105.

5. In Taj Muhammad's case as also in Aziz-ur-Rehman's case, the Peshawar High Court has held that if a Court had jurisdiction then in that case it had jurisdiction to decide one way or the other and erroneous conclusion of law or fact could only be corrected in appeal, and a revision would not be competent on such a ground. Revisional jurisdiction vested in High Court would not interfere to correct every irregularity in exercise of such jurisdiction except where grave injustice or hardship would result on account of its interference.

6. In the case Aziz-ur-Rehman v. Government of N.-W.F.P. PLD 1996 Peshawar 51, following observations were also made, which are relevant for the purpose of this case:-- "It may be stated at the very outset that section 115, C.P.C. Does not confer any substantive right to the petitioner because a 'Revision' is a matter between the higher and subordinate Court and the right to move a petition in this respect by the petitioner is merely a privilege. It has probably escaped the notice of the learned counsel for the petitioner that section 115, C.P.C. Applies only to cases involving the illegal assumptions, non-exercise or irregular exercise of jurisdiction. The provisions of section 115, C.P.C. Cannot be invoked against conclusion of law or fact which do not in any way, affect the jurisdiction of the Court, no matter, however erroneous, wrong or perverse, the decision might be, either on a question of fact or law unless the decision involves a matter of jurisdiction."

7. The learned Additional Advocate-General appearing on behalf of respondents Nos.2 and 3 submitted that the trial Court by restoring the suit has allowed the parties to get decision on merits, which is in the spirit of law as such he supported the impugned order.

8. It is not contended before me that the right to sue does not survive to the legal heirs after the plaintiff's death. In such circumstances obviously, the suit would not abate as contemplated under Order XXII, Rule 1,C.P.C. Then, it is rule 2 of Order XXII, C.P.C. That makes the provision of entering the names of the surviving plaintiffs, in case right to sue survives to the legal heirs. Respondent Dost Muhammad was sole surviving heir and the instant matter relates to the cancellation of registered sale-deed, the learned lower Court has therefore rendered substantial justice in allowing the parties to contest the controversy on merits. I would concur with the learned counsel for the respondent that the technicalities should not defeat the merits. It is also stated in the impugned order that application moved by Dost Muhammad under Order XXIII, Rule 3, C.P.C. Was pending in the case, but learned counsel for the applicant submitted that no such application was filed on the relevant date i,e, date of registration of suit. I fail to understand what illegality has been committed by the trial Court in allowing the suit to proceed through the plaintiffs sole legal representative to whom the right to sue survives. There is no illegal exercise of jurisdiction vested in the Court. The revision application does not merit consideration and is accordingly dismissed in limine.