P L D 2019 Balochistan 106 (PLP)

ROZI KHAN BARRECH, J.

This Civil Revision Petition has been filed under Section 115 C.P.C. against the orders dated 05.11.2015, 25.10.2016 passed by learned Qazi Lasbela at Uthal ("trial court") and order dated 02.02.2017 passed by learned Majlis-e-Shoora Lasbela ("appellate court"), whereby the application filed by the petitioners for restoration of the suit was dismissed.

2. Facts of the .:ase in brief are that on 15.01.2014 the petitioners filed a suit for declaration, perpetual injunction and correction of mutation entries against the respondents which was ultimately dismissed in default on 11.09.2015 by the trial court. On 01.10.2015 the petitioners filed an app1ication for restoration of the said suit but the same was also dismissed vide impugned order dated 5-11-2015. The petitioner filed another application under section 151, C.P.C. before the trial Court on 17-5-2017 and the same was dismissed on 25.10.2016. The petitioners being aggrieved from the orders dated 25.10.2016 and 5.11.2015 filed an appeal under Order XLIII, Rule 3, C.P.C. before the appellate court, which too was dismisscd on 02.02.2017. Hence, this petition.

3. Learned counsel for the petitioners argued with great vehemence that both the courts below have failed to properly appreciate the material brought on record thus the impugned findings suffer from serious illegalities and irregularities. He contended that since the very order dated 05.11.2015 is void ab initio, therefore no limitation runs against such an order. He further urged that the petitioners having been non-suited merely on technical grounds despite the fact that the main case was fixed for final arguments, thus, the impugned conclusions of both the courts below are bereft of reasoning resulting in serious miscarriage of justice, which are liable to be set aside and the main case is to be decided on its own merits.

4. The respondents Nos. 1 to 4 were not traceable at their given address and the notices were repeatedly received unserved, therefore, they were served through publication in Daily Jang dated 14th June, 2019, but none appeared on their behalf before the court, thus they were proceeded against ex-parte vide order dated 24.06.2019 passed by this court.

5. The learned AAG appeared on behalf of official respondent No.5 and supported the contentions so raised on behalf of the petitioners.

6. Perusal of the record reveals that after conclusion of the trial, the case was fixed for final arguments on 03.09.2015 as per order sheets maintained by the trial court. On the said date, attorney for the petitioners along with counsel Mr. Shehbaz, Advocate appeared before the court, but the learned Presiding Officer was on leave, therefore the case was adjourned through note of the reader of the court for 11.09.2015. On the said date counsel for respondents was present, but none appeared on behalf of the petitioners, therefore the suit was dismissed for non-prosecution. Without adverting to the other facts of the case, regarding dismissal of the application for restoration of the suit, three main questions have cropped up before this court, which are (i) whether the case adjourned by note of the Reader of the court can be termed as a date of hearing (ii) whether the suit can be dismissed in default when the same was fixed for final arguments and (iii) whether the application filed by the petitioners for restoration of the suit was barred by time?. In this respect it has been consistent view of the superior courts that dismissal of the suit in default for non-appearance on the date, not given by the Presiding Officer but by the Reader of the court could not be treated to be a date of hearing within the meaning of Order IX, Rule 8, C.P.C. To my mind, the said order is void ab-initio and without jurisdiction. Moreover, the period of limitation for application for restoration of the suit in such eventuality is governed by Article 181 and not by Article 163 of the Limitation Act, 1908. After dismissal of the application for restoration of the petition on 05.11.2015 the petitioner filed another application under Section 151 C.P.C. on 17.05.2016 for restoration of the suit which was within three years' period prescribed under Article 181 of the ibid Act thus, the same could not be held as barred by the law of limitation.

7. It is stated that the case was fixed for final arguments and the entire evidence of the parties has been recorded. Thus, the case was ripe for judgment. For the sake of arguments if it is presumed that when the trial court itself fixed the case for hearing, then it could have taken action under Order XVII, Rule 3 C.P.C. and should not have dismissed the case under Order IX, Rule 8, C.P.C. Reliance in this behalf is placed on the case titled as (PLD 1960 (W.P.) Lahour 129). Indeed dismissal of the suit for non-appearance at such a stage was held wholly not warranted and the entire labor and expense of many years could not be allowed to go waste. The only proper course in such circumstances was either to fix another date for hearing of final arguments or to decide the suit on merits on the basis of available evidence produced by both the parties without hearing the arguments. For the reasons stated herein above, the petition is accepted. The impugned orders of both the courts below are set aside and while restoring the suit the case is remanded to the trial court for decision afresh strictly on merits after affording full opportunity to the parties. The trial court is directed to procure the attendance of the parties, specially defendants by all possible means before proceeding further in the case. Petition is accordingly accepted, with no order as to costs. MH/56/Bal. Case remanded.