2013 PLP 785 (YLR)

MUHAMMAD KHALID MEHMOOD KHAN, J.

The petitioner filed a suit for declaration against the respondents before Civil Court Lahore. The learned Trial Court out of the pleadings of the parties framed the issues and case was pending when on 12-7-2008 the suit was dismissed for non-prosecution. The petitioner filed an application on 11-9-2008 for restoration of suit. The petitioner averred in his applica-tion that his counsel got him marked present with the Reader of the Court on 12-7-2008 and when at 2'O Clock his counsel inquired about the proceedings the Reader told him that case had been adjourned to 8-9-2008. He checked the cause list but no date was mentioned in the cause list. When on 8-9-2008 he appeared before the Court for attending the case it transpired that case was dismissed for non-prosecution on 12-7-2008. The application was contested by the respondents and the learned trial Court vide order dated 5-11-2009 dismissed the application summarily. The petitioner assailed the said order through an appeal which too was dismissed on 9-3-2010. The petitioner has assailed the two orders through the present revision petition.

2. Admittedly the suit was dismissed for non-prosecution and the petitioner averred in his application that the Reader of the Court wrongly informed him about the next date of hearing. The respondents have controverted the averments of the petition for restoration of suit and the learned trial Court without framing the issues on the controversy between the parties dismissed the application.

3. Learned counsel for the petitioner submits that on 12-7-2008 the suit was not fixed for hearing but was fixed for arguments on a miscellaneous application and the learned trial Court in the absence of petitioner and his counsel can maximum dismiss the application and not the suit. He further submits that 12-7-2008 was not the date of hearing.

4. Learned counsel for respondents submits that petitioner has not filed any affidavit of the Reader of the Court who informed him about the next date of hearing nor has submitted application for condonation of delay and as such learned Courts below have rightly dismissed the suit.

5. Perusal of order dated 12-7-2008 shows that case was fixed for arguments on miscellaneous application not the suit. If the petitioner was not present on 12-7-2008 the learned trial Court can dismiss the application for non-prosecution and not the suit. Further the petitioner has categorically averred in his application that Reader of the Court informed him about the next date of hearing i.e. on 8-9-2008 and this fact was denied by the respondents and as such it was controversial point between the parties which can be resolved only after recording the evidence. It is established principle of law that limitation starts from the date of knowledge. The averments of petition shows that the petitioner came to know on 8-9-2008 about the dismissal of suit and he filed application for restoration of suit on 11-9-2008. This means that from the date of knowledge the application was within time and if the respondent was controverting these facts the learned trial Court should have framed the issues and record the evidence. As the application for restoration of suit was dismissed summarily, the order impugned is not sustainable in the eye of law.

6. In view of above the orders of both the courts below are hereby set aside and the case is remanded to the learned Civil Court where the application of the petitioner shall be deemed to be pending and the learned trial Court will decide the same after framing the issues and recording the evidence. KMZ/M-163/L Case remanded.