Dismissal of Civil Revision for Non-Prosecution and Limitation for Restoration

Dismissal of Civil Revision for Non-Prosecution and Limitation for Restoration Case Laws Civil Law Civil Revision Knowledge - Civil Law Limitation Litigation & Arbitration Non-Prosecution Solutions - Civil Law Supreme Court Mr. Justice Mian Saqib Nisar in his judgment has decided the issue regarding dismissal of civil revision for non-prosecution and limitation for restoration in Civil Appeals No. 510 of 2012 etc.

1. These appeals, by leave of the Court, are being disposed of together as they involve the same legal question as to whether a civil revision filed under Section 115 of the Code of Civil Procedure, 1908 (CPC) once admitted to regular hearing can be dismissed for non-prosecution or not. Since the above proposition is common to all the matters, we intend to resolve the same before deciding the individual cases on their own merits.

2. The learned counsel for the parties have argued extensively for and against the proposition; their arguments and law cited in support thereof are summarized herein below. Their pleas/counter-pleas and the submissions of the learned amicus curiae are reflected in the reasons of this opinion. The learned counsels who are against dismissal of a civil revision once it has been admitted to regular hearing have argued that the jurisdiction of the revisional court is supervisory in nature and when the court has once taken cognizance of an error of jurisdiction or material irregularity or illegality in the decision challenged in revision it becomes the beholden duty of the court to decide the matter on merits in order to correct such error. Reliance was placed upon the judgments reported as Muhammad Sadiq Vs. Mst. Bashiran and 9 others (PLD 2000 SC 820), Muhammad Yousaf and others Vs. Mst. Najma Bibi and others (PLD 2006 SC 512), Rasheed Hussain Malik and another Vs. Mst. Hanifa Bai and others (2008 SCMR 1027) and Mandi Hassan alias Mehdi Hussain and another Vs. Muhammad Arif (PLD 2015 SC 137).

3. The contentions of the learned counsel in favour of dismissal of a civil revision for non-prosecution even after it has been admitted regular hearing may be summarized as:

(i) A civil revision is dismissed for non-prosecution and/or restored under the inherent power of the court and not under a specific rule of the CPC;

(ii) When the revisional jurisdiction is exercised at the behest of a party, the revisional proceedings are akin to any other adversarial litigation between the parties and when the instigator fails to pursue the matter, it has to be dismissed for non-prosecution. But where the court itself calls for the record to examine any error contemplated by Section 115 of the CPC the matter should be disposed of on merits and not on account of the non-appearance of the party(ies);

(iii) The revisional court cannot be saddled with the duty to decide the matter on merits despite non-appearance of instigating party. An indolent/delinquent party should not be allowed a premium for his own acts/omissions to the prejudice of the other side.

In support of the above, reliance was placed upon Abdul Rashid Vs. Mst. Saeeda Begum and another (1994 SCMR 1888), V.R. Mall Vs. Sh. Muhammad Yusuf and another (PLD 1975 Lah 825), Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatreya Bapat (AIR 1970 SC 1) and Dhondiba Appasaheb and another Vs. Wasudeo Anant Sherlekar and another (AIR 1957 Nag 83).

4. The crux of the arguments of the learned amicus curiae was that there cannot be an absolute rule that a revision petition can or cannot be dismissed for non-prosecution, instead it would depend on the facts and circumstances of each case. He argued that as there is no corresponding provision to Order 41 Rule 9 of the CPC (admission of an appeal) in terms of admission of a civil revision, therefore mere admission does not necessarily imply that the revisional court has decided to examine and rectify an error in the impugned judgment/order. But where the court after examining the record opines in its admitting note that there is a prima facie case for exercise of revisional powers then the court should decide the case on merits rather than disposing of the same for nonprosecution. He relied upon the cases reported as Jan Muhammad Vs. Muhammad Asghar (PLD 1981 SC 513), Babii Vs. Mst. Niaz Bibi (PLD 1982 Lah 192), Umar Khan Vs. Nasim Raza and others (1990 MLD 1062), British India Navigation Company and another Vs. National Security Insurance Company Ltd. (1985 CLC 1799), Muhammad Arab and 2 others Vs. Jaffery Muhammad Hassan (1983 CLC 335), Farman Ali Vs. Muhammad Yousuf Ali (1990 CLC 1936), Muhammad Suleman Vs. Wilayatullah Khan and 2 others (1990 CLC 110), S. M. Abdullah & Sons Vs. Pakistan Mercantile Corporation Ltd. & another (PLJ 1977 Kar 190), Musharraf Sultana Vs. Fazal Hussain and 9 others (1992 CLC 1394), Abdul Rashid’s case (supra), Province of Punjab through District Officer Revenue, Rawalpindi and others Vs. Muhammad Sarwar (2014 SCMR 1358), Hafeez Ahmad and others Vs. Civil Judge, Lahore and others (PLD 2012 SC 400), Mandi Hassan’s case (supra), Federal Government of Pakistan and another Vs. Khurshid Zaman Khan and others (1999 SCMR 1007), Muhammad Swaleh and another Vs. Messrs United Grain & Fodder Agencies (PLD 1964 SC 97), Khan Bahadur’s case (supra), Muhammad Sadiq’s case (supra), Mst. Rabia Bibi and others Vs. Ghulam Rasool and others (2004 SCMR 394), Farzand Ali and another Vs. Muhammad Rafique (2013 CLC 976), Government of NWFP through Chief Secretary and 3 others Vs. Abdul Malik (1994 SCMR 833), Noor Akbar through Sardaran Mai and others Vs. Mst. Gullan Bibi (2005 SCMR 733), Hakeem Abdul Wahab Shirazi Vs. Tariq Hussain and 2 others (1989 SCMR 699), Hisaria Plastic Products, Kanpur Vs. Commissioner of Sales Tax, U.P., Lucknow (AIR 1982 All 185) and Jaswinder Kaur and others Vs. Jatinder Pal Singh etc. (58 (1995) DLT 155).

5. A comparison of appeals and revisions will serve to show why civil revisions can be dismissed for non-prosecution even after being admitted to regular hearing. They are simply two types of remedies available to persons aggrieved of a judgment/order. An appeal is the recourse adopted by a person to a superior court vested with the jurisdiction to reconsider a decision of a subordinate court, with the aim of attaining a reversal/modification of such decision. An appeal is not merely a matter of procedure but a substantive right. It is the continuation of a suit and during appellate proceedings the entire matter stands reopened. The jurisdiction of an appellate court can be invoked by a person who believes that the subordinate court has erred in law or in fact whilst passing the judgment/order under appeal. On the other hand a revision also involves an exercise of reconsideration/re-examination of the judgment/order of a subordinate court but only to the extent that it falls squarely within the parameters of Section 115 of the CPC. Although the matter of revision is not a mere privilege afforded to the aggrieved person but also a right this revisional power remains discretionary. The function of the revisional court is to ensure the proper administration of justice through the proper exercise of jurisdiction, procedural accuracy, correctness of the decision and legality thereof by the subordinate court. If the revisional court is satisfied that the subordinate court has not erred in this regard and the decision is sound in law, then it will not reverse or modify the decision solely on the basis that the subordinate court could have reached a different conclusion on merits.

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