2007 PLP 2863 (YLR)

SH. HAKIM ALI, J.

Muhammad Abdur Rehman and Muhammad Rehman, both petitioners had filed a suit for cancellation of a registered sale deed No.417 dated 20-5-2003 having allegedly been executed by plaintiffs and Muhammad Imran, defendant No.3 in favour of Muhammad Zahid Ali, defendant No.1, with regard to land measuring 3 Marlas residential, situated in Chak No.327/J.B, Tehsil Toba Tek Singh, with declaration that the aforementioned sale deed was without consideration, forged, fictitious and collusive. As a consequential relief, permanent injunction was also prayed for. The suit was contested by filing of written statement. During the pendency of the suit on 12-1-2004 up to the extent of defendant No.3, suit was dismissed due .to default of deposit of process fee, while the suit against other defendants was adjourned for filing of reply to the application filed under Order VII Rule 1f of the C.P.C. The next date was fixed as 23rd of February, 2004. On that dated, learned counsel for defendants Nos.1 and-2 was present but no one had appeared on behalf of the plaintiff. Therefore, the suit of the plaintiff was dismissed in default of appearance. Thereafter an application for setting aside order dated 23-2-2004 and restoration of the suit was filed by plaintiffs/petitioners before the learned trial Court on 9-5-2005. The aforementioned application was also contested by filing reply to it by the defendants/respondents. Learned Civil Judge dismissed the petition on 12-12-2005 so an appeal was filed against that order of dismissal before the learned Additional District Judge, Toba Tek Singh, which was also dismissed on .18-7-2006 by learned Additional District Judge-II, Toba Tek Singh. Hence, this revision.

2. Learned counsel for the petitioner submits that on 12-1-2004 the suit was fixed for filing of reply to the application filed under Order VII Rule 11 C.P.C. before the learned Court below and the next date fixed was 23-2-2004. As per learned counsel, on the aforesaid date, as the case was not fixed for hearing, therefore, the learned trial Court was not empowered and had got no jurisdiction to dismiss the suit under Order IX Rule 8 of the C.P.C. Therefore, the dismissal of the should have been set aside.

3. Learned counsel for the respondents submits that the application for setting aside the dismissal and restoration of the suit was filed on 9-5-2005 after about one year and three months from the date of the suit on 23-2-2004. The explanation submitted in the application that Clerk of counsel had been giving wrong and fictitious dates was not acceptable and this could not be considered a ground for acceptance of the petition.

4. After considering the arguments of both the learned counsel and from the perusal of record, it is correct that order / passed on 23-2-2004 could not be passed for dismissal of the case, as the date was not fixed for hearing of the case but there is another difficulty in the way of petitioners/applicants, who had not filed the application for setting aside the dismissal of the suit within prescribed time. The application was filed after a delay of about one year three months, therefore, it could not be considered to have been filed within a justified period. The reason advanced in the application that Clerk of the learned counsel had been giving wrong dates cannot be accepted as the matter was between the E learned counsel and the party concerned Clerk was no, where in the picture. Moreover, it cannot be presumed that for the filing of reply, that one year three months could have been passed and the petitioner would be getting dates after dates for one year and three months merely for filing of the reply. It appears that this is an afterthought and concocted story with regard to the giving of dates by Clerk of learned counsel. If it is considered true, even then the petition cannot be accepted, as the matter was between the Clerk and the party and the petitioner may file proceeding against the aforementioned person, who had imparted to them wrong information. Therefore, this petition cannot be accepted. So, the civil revision is dismissed. MH/M-381/L Revision dismissed.