P L D 1981 Peshawar 151 (PLP)

At the outset, the learned counsel for the respondent submitted that the learned Senior Civil Judge could not dismiss the suit of his client in default under Order IX, rule 8, C. P. C., on 10-6-1979, as for that the case had been fixed only for the appearance of the defendant and no evidence was to be recorded or arguments were; to be heard. He, therefore, urged that as under Order IX, rule 8, C. P. C., a suit can be dismissed in default, when it is fixed for hearing (i.e. for recording evidence or hearing arguments) which is not the position in the present case, the order of the learned Senior Civil Judge was not tenable in law and the learned District Judge rightly upset the same by the impugned order. This contention was also raised before the learned District Judge which impressed him and he sought support for it from the authorities reported in P L D 1970 Lah. 412 and P L ID 1971 Lah.

746. The discussion of the learned District Judge on this aspect of the case is contained in para. 4 of his impugned order which may be reproduced :-- ' "The learned counsel for the appellant strenuously contended that 10-6 1979 had not been fixed as date of hearing of the suit and as such, the provisions of Order IX, rule 8, C. P. C. cannot be - attracted. A look at 'the order-sheet shows that the suit was instituted on 25-4-1979 and the respondents were summoned for 10-6-1979. The appellant was directed to deposit Rs. 5,000 in cash and for the balance to furnish security bond before the date fixed. On 10-6-1979, neither the appellant nor his counsel appeared when the case was called finally at 1 p.m. and in the presence of the counsel for the respondents it was dismissed in default. It is contemplated by Order IX, rule-.8, C. P. C. that where the defendant appears and the plaintiff does not appear when the suit is called for hearing, the Court shall make an order that the suit be dismissed unless the defendant admits the claim or part thereof. The term of hearing, underlined' by me is significant and implies taking of evidence or hearing arguments or where the question regarding the determination of the suit is concerned as observed in P L D 1970 Lah.

412. Where a suit is concerned as observed in P L D 1970 Lah.

412. Where a suit is dismissed under Order IX, rule 8, C. P. C. on a date fixed for the purpose of determining some interlocutory matter the order was held to be without jurisdiction and could be set aside under Order 151, C. P. C. The question of interpretation of `hearing' of case came up for consideration in P L D 1971 Lah. 746 and the order of dismissal for non-appearance on the date fixed for filing of written statement was held not to be one under Order IX, rule 8, C. P. C. In this case 30-9-1963 was fixed for filing of written statement but due to mistake on the part of the Reader the case was taken up on 26-7-1963 and dismissed for default on non-appearance of the plaintiff. It was held that acts of Courts should not prejudice anybody and order of dismissal passed on 26-7-1963 was void ab initio. No period of limitation ran against such void order. The provisions of Order IX, rule 8, C. P. C. had no application and resort could be had to the provisions of section 151, C. P. C. for restitution of suit. In the instant case, it can be said that the suit had not been fixed for hearing for 10-6-1979 and as such, the provisions of Order IX, rule 8, C. P. C. could not be attracted. The order of dismissal of suit for default of non-appearance is obviously had in the eye of law and the question of limitation would not, in the circumstances, arise. The suit merited restoration and for decision on merits." I have given my very earnest consideration to the view of the learned District Judge especially as he has sought support for it from the decisions of the superior Court. However, I have not been able to agree with him that in the present case 10-6-1979 on which date the suit of the plaintiff was dismissed in default had been fixed for the mere appearance of the defendant and he or for that matter both parties were not to heard. The plaintiff filed the suit on 25-4-1979 and the Court fixed the case for 10-6-1979 for summoning the defendant. It is obvious that summons to the defendant was directed to be issued under Order IX, rule 1, C. P. C., which provides :- "On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court house in persons or by their respective/pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court." It will be seen that this provision has laid down that on the day fixed in the summons for defendant, the parties shall be heard. The word "hearing" in this provision is not without significance and import. The defendant is called upon to answer; which means that he will answer to the allegations made by the plaintiff in the plaint. In other words, he will be heard on the point whether he accedes to the allegations made by the plaintiff in the plaint or he denies the same and would like to contest the suit. This seems to be the proper construction on rule 1, Order IX, C. P. C. Therefore, the authorities relied upon by the learned District Judge do not seem to be attracted to the present case, as according to rule 1, Order IX, C. P. C., the case had been fixed for hearing of the parties. But what course the Court will adopt in case neither party appears before the Court in compliance with the order passed under rule 1, Order IX, C. P. C? Rule 3, Order IX, C. P. C. says that where neither party appears when the suit is called on for bearing, the Court may make an order that the suit be dismissed. Rule 13 will have to be read along with rule 8, Order, IX, C. P. C., which makes the point further clear that "Where the defendant appears and the plaintiff does not appear when the suit is called for hearing, the Court shall make an order that the suit be dismissed . . . . . ". As in the present case notice had been issued for appearance of the parties before the Court on 10-6-1979 on which date the plaintiff failed to appear, there was no bar to the learned Senior Civil Judge to exercise his power under rule 8, Order IX, C. P. C. Therefore, it cannot be said that the Court had no jurisdiction to dismiss the suit under rule 8, Order IX. C. P. C., when the plaintiff failed to appear on 10-6-1979 fixed for hearing under rule 1, of the same Order. The learned counsel for the respondent next contended that in the present case the order of the learned Senior Civil Judge was to be challenged in revision before the learned District Judge and the appeal filed before him by his client was a mistake, therefore, the impugned order of the learned District Judge is to be treated as having been passed by him in the exercise of his revisional jurisdiction. He, therefore, urged that as an order passed in revision would be legally a final order, the present revision application filed by the petitioner against the order of the learned District Judge is not competent. I do not subscribe to the contention of the learned counsel in the circumstances of the case. Correct that the order of they learned Senior Civil Judge was to be challenged in revision before the learned District Judge, but as the respondent called upon him to deal with the order of the learned Senior Civil Judge in the exercise of his appellant jurisdiction (because he had filed appeal before him), it accrued right to the petitioner to challenge the impugned order of the learned District Judge ` in revision before this Court. It may be observed that if the Court required' by a party to deal with the order of the Subordinate Court in the exercise of its appellate jurisdiction instead of revisional jurisdiction which is legally the proper course, it will not prevent the affected party to challenge the' order passed by the Court in the exercise of his appellate jurisdiction before the superior Court in the exercise of its revisional jurisdiction. I, therefore hold that in the circumstances of the case, the present revision application filed by the petitioner before this Court against the impugned order of the learned District Judge passed by him in the exercise of his appellate jurisdiction has been competently filed and is to be decided on merit. Consequently, the contention of the learned counsel for the respondent is ruled out. I now turn to the merit of the case. The learned District Judge allowed the appeal observing that :- .. the provisions of Order IX, rule 8, C. P. C. could not be attracted. The order of dismissal of suit for default of non-appearance is obviously bad in the eye of law and the question of limitation would not, in the circumstances, arise. The suit merited restoration and for decision on merit." As discussed in the preceding paragraphs, I have not been able to endorse these observations, holding that the learned Senior Civil Judge has competently dealt with the application of the respondent for the restoration of his suit under Order IX, rule 8, C. P. C. I am thus left with the adjudication of the question whether in the circum stances of the case, the plaintiff/respondent was negligent in pursuing his suit and therefore, the learned Senior Civil Judge rightly dismissed his application filed by him after the period of limitation for the restoration of his suit dismissed in default. As noted already, the suit was dismissed in default on 10-6-1979 and the application for restoration was filed on 21-7-1979. f he plea taken by the respondent in his application for the restoration of the suit was that on 10-6-1979, he had attended the Court and he was given a Purcha Peshi that the case was adjourned to 21-7-1979. He placed the Purcha Peshi on record. It is Exh. A.W. 1/1. Ahmad Khan, Reader of the Court was examined in this connection. He admitted that the Purcha Peshi in question is in his handwriting, but added that "as there is. a rush of work therefore I cannot say to whom and when and in which case, the said Exh. A.W. 1/1 was issued". In order to ascertain whether on 10-6-1979, any other case had been adjourned to 21-7-1979, Ahmad Khan, Reader of the Court was summoned along with the relevant register. His statement was recorded in Court on 19-12-1979. He stated from the record that on 10-6-1979 no case had been adjourned to 21-7-1979. Therefore, it cannot be said that he had mistaken to have issued the Parcha Peshi to the respondent while it related to some other suit filed by any other person. As stated that the plaintiff/respondent had filed two Suits No. 511/1 (which is the subject-matter of the present revision applica tion) and No. 512/1, that both were fixed for 10-6-1979 and both were dismissed for default of non-appearance of the plaintiff. He was unable to furnish any plausible and reasonable explanation for issuing the Purcha Peshi on 10-6-1979. 'this reflects adversely on the conduct of the respondent as well as on the conduct of the Reader. I am driven to the conclusion that the respondent had never attended the Court on 10-6-1979 nor on that date the Reader had issued the Purcha Peshi. It is clear that the respondent was negligent to appear in the case on 10-6-1979, although he was aware of it. He seems to have come to the Court on 21-7-1979 and pleased the Reader of the Court that he be issued a chit in his hand writing for 21-7-1979 so that he should produce the same as a proof along with the application for the restoration of his suit. This was an exercise of tactic by the respondent to influence the Court that he had attended the Court on 10-6-1979 but his attendance was not recorded and the Reader issued to him the Purcha Peshi that the case was adjourned to 21-7-1979. The learned Senior Civil Judge disbelieved him and rightly in the circumstances of the case. The order of the learned Senior Civil, Judge dated 10-6-1979 will show that he called the case again and again e until 1; p.m. but neither the plaintiff nor his counsel appeared and consequently he dismissed the suit in default. If really he had attended the Court on 10-6-1979, it does not commend to the sense of a prudent man that the Court escaped his attendance and dismissed his suit in default. Assuming that be had attended the Court after I p.m., yet it is unebeliev able that the Reader of the Court issued to him the Purcha Peshi that the case was adjourned to 21-7-1979. The Purcha Peshi was clearly a forged document and it can be said that it was issued on 21-7-1979 by the Reader~ to- the respondent when he inquired about his suit. It is therefore clearly to me that the plaintiff/respondent had not been pursuing his case diligently and with due care and as he manoeuvred with the Reader of the Court when after the period of limitation he filed an application for the restoration of his suit on the ground that he attended the Court on 10-6-1979 and was issued Purcha Peshi that the case was adjourned to 21-7-1979, his application does not deserve any favourable consideration. This revision application is consequently allowed, the impugned order of the learned District Judge is set aside and that of the learned Senior Civil Judge is upheld, as the application filed by the respondent for the restoration of his suit was not only barred by limitation but in seeking restoration he attempted to make a false plea that on 10-6-1979 he had attended the Court and the Reader of the Court had issued to him a Purcha Peshi that the case was adjourned to 21-7-1979. The costs of these proceedings shall be borne by the respondent. Before parting with the case, I will like to observe that while cases are adjourned in Subordinate Courts, it is the practice of the Reader or other concerned official that he mentions the next date fixed in the case on plain papers which are delivered to the parties. This practice is obviously improper; as if a party does not appear in the case, he can take a false Purcha Peshi from the concerned official to show that he had attended the Court. I therefore propose that Purcha Peshi should be in a printed form like this : Serial No.

No. of suit/appeal/revision.

Versus

Adjourned to

Dated; Signature of the concerned official." I have proposed that each Purcha Peshi should be numbered serially. This will require that the forms of Purcha Peshi should be in a printed book. If this practice is followed, it will eliminate the chances of issuing Purcha Peshi to the litigants who have not attended the Court on the date fixed in the cases. In other words, if a party does not attend the Court on a date fixed in the case and thereafter he visits the Court, he cannot persuade the concerned official to issue to him a Purcha Peshi that he bad attended the Court on the date fixed in the case, as the serial number of the Purcha Peshi will be meant for a subsequent date. I have also found the conduct of the concerned Reader in the present case objectionable. Therefore, let a copy of this judgment be sent to the District Judge with direction to proceed against him departmentally. S. A. H. Revision allowed.