1991CLC237 (PLP)

ABDUL RAHIM KAZI, J.‑‑The present petition has been filed with the following prayer: "(a) To declare that the order dated 2‑3‑1985 passed by the Senior Civil Judge, Ghotki on an application under Order IX, rule 9, C.P.C. dated 24‑11‑1984 moved on behalf of the ancestor of the respondents Nos.l to 4 in F.C. Suit No.119 of 1978 and judgment dated 3‑2‑1988 passed by the IVth. Addl. District Judge, Sukkur in C.Rev. No.13 of 1985 are void ab initio and without jurisdiction and lawful authority and are of no legal effect. (b) Any other declaration or direction or order, that this Hon'ble Court deems fit to grant in facts and circumstances of this case." The chequered history of the case is that the ancestor of the present respondents Nos.l to 4 had filed a civil suit being suit No.119/75 in the Court of Senior Civil Judge, Ghotki for the relief of declaration. This suit ultimately came up for hearing on 15‑5‑1982 from which date the same was adjourned to 8‑6‑1982 for arguments on injunction application and issues. The matter came up for hearing on 8‑6‑1982 on which date the Judge was on leave and the case was adjourned to 21‑6‑1982. The order of Additional District Judge shows that from this date the matter was postponed to 26‑6‑1982 for arguments on injunction application and also for the purpose of settlement of issues. However, there is a late diary written by the Reader of the Court which shows that one application under Order 7, Rule 11, C.P.C. was moved on behalf of the petitioners the notice of which was ordered to be issued and the matter was postponed to 26‑6‑1982 for arguments on injunction application as well as for the purpose of objections on the application moved on behalf of petitioners under Order VII, Rule 11, C.P.C. On 26‑6‑1982 the plaintiff and his Advocate were repeatedly called absent while the Advocate for the present petitioners (defendants 4 to 7) was present and the suit was ultimately dismissed at 1‑10 p.m. An application for restoration was moved by the plaintiff under Order 9, Rule 9, C.P.C. on 1‑8‑1982. The only ground advanced in this application was that the suit was not fixed for hearing and as such it could not have been dismissed for non‑prosecution and that the suit was fixed only for hearing of interlocutory applications. This application was dismissed on 12‑10‑1982 by a short order as the plaintiff and his Advocate were called absent without intimation and also that the cost for service of the notice of said application on defendants was not paid. The plaintiff thereafter moved another application under Order 9, Rule 9, C.P.C. for restoration of the suit alongwith an application under section 5 of the Limitation Act. In this application for the first time the plaintiff introduced a new ground of illness also. This application was contested and was ultimately dismissed on 9‑8‑1984 on the ground that it was barred by limitation and that this application is not maintainable as a similar application for restoration of suit was previously dismissed. The plaintiff thereafter moved a third application under Order 9, Rule 9, C.P.C. on 21‑11‑1984. This application was also supported with an application under section 5 of the Limitation Act. This application was allowed by the Senior Civil Judge, Ghotki by an order passed by him on 2‑3‑1985 and suit was restored on the ground that no objections have been filed to this application by the other side and that the grounds shown in the application are satisfactory. The present petitioners being aggrieved from the said order submitted a civil revision application being Civil Revision No.13/85 before the Court of‑ District Judge, Sukkur which was heard by the learned IVth Additional District Judge, Sukkur who was pleased to dismiss the said revision application concurring with the findings of the Senior Civil Judge. He has further held that the question of period of limitation will not come in the way of the ancestor of the present respondents Nos.l to 4 (plaintiff) as the order of dismissal of suit on 26‑6‑1982 is a void order. The present petitioners having no other remedy available to them have filed this Constitutional Petition. We have heard Mr. MA. Rashid, the learned counsel for the petitioners and Mr. Paryaram, the learned counsel appearing for the present respondents Nos.l to 4 and also Mr. Muhmmad Siddiq Kharal, learned Addl. A.‑G. for the official respondents. The basic point which requires consideration in the present matter is as to whether the initial order passed by Senior Civil Judge, Ghotki on 26‑6‑1982 dismissing the suit of the plaintiff was a valid order or void order as held by the IVth Additional District Judge, Sukkur. The contention of Mr.MA. Rashid, the learned counsel for the petitioners is that when a suit is fixed for settlement of issues then that is supposed to be a date of hearing in the suit and a suit can be dismissed on this date for non‑prosecution if the plaintiff and his counsel are absent. In this behalf reference may be had to the case of Muhammad Hanif v. Province of Punjab (P L D 1981 Lahore 95) wherein a learned Single Judge of Lahore High Court has held: "

3. Learned counsel for the petitioner contended that the date on which the suit was dismissed in default was not the date fixed for its hearing and, therefore the dismissal of the suit was void ab initio and a nullity. It was pointed out by him that on 15th March, 1978 the case was adjourned to 15th April, 1978, the date when it was dismissed for non‑prosecution, and that while so adjourning the case it was directed by the learned Senior Civil Judge that summons shall issue to defendant No.1 for 15th April, 1978. It was conceded by the learned counsel for the petitioner that when suit was registered the learned Senior Civil Judge had ordered issuance of summonses to the defendants for settlement of issues. Thus, the summons mentioned in order, dated the 15th March, 1978, was of the same category which was referred to in the order by which the case had been registered by the learned trial Court. In view of the provisions of Order IX, rule 1 of the Code of Civil Procedure, the date fixed for framing of issues in a suit is a date of its hearing. The case reported as Shaikh Abdul Haque v. Syed Muhammad Anwar (P L D 1979 Lahore 332), is an authority in point. In this connection reference can also be made, with advantage, to the provisions of Order X, Rule 1 of the Code of Civil Procedure relating to the first hearing of the suit which, according to Chidambaram Chettiar v. Parvathi Achi (A I R 1926 Madras 347), is the date on which issues are framed. Learned counsel for the petitioner did not cite any authority to the contrary. 1, therefore, entertain no manner of doubt that 15th April 1978, on which date the suit of the petitioner was dismissed in default, was a date of hearing of the suit and, therefore, it could be dismissed due to the absence of the petitioner and his counsel." Also in the case of Abdul Shakoor, Haji Aminuddin v. Miss Mumtaz and others (P L D 1961 (W.P.) Karachi 145) M.R. Kayani, CJ (as he then was) has observed: "

17. Personally I think that apart from rule 1 of Order XVII there is no other provision which provides for an adjournment of the case and that consequently whenever there is an adjournment for sufficient cause, it is the adjournment of a hearing and something in relation to the case has to be done at the next hearing. As regards the defendant's conduct I reproduce what I observed in Kama! Din v. Muhammad Bashir (P L D 1952 Lahore 456), sitting with S.A. Rahman We think it appears to have been understood that once a party receives intimation of an action, it is for him to pursue it and to keep himself in touch with the proceedings, either personally or through his counsel. From the observations made in the above two decisions it is clear that a date fixed for settlement of issues is a date for hearing and once the matter comes up for settlement of issues, thereafter if any date is obtained and the matter is p adjourned, it is supposed to be adjourned for a date of hearing and the suit could be dismissed for non‑prosecution on such adjourned date. It would be pertinent to note that in the present case the suit had come up for hearing on 15‑5‑1982. .; The order on order sheet reads as under:‑ "Junior of Advocate for plaintiff present. Defendant No.3 is ex parte. Advocate for defendants Nos.4 to 8 present. Defendant No.1 and 2 called absent since morning. The suit is fixed for W.S. of defendants 1 and

2. Since defendants Nos.l and 2 are absent without intimation, let the suit to proceed ex parte against defendants Nos.l and

2. Advocate for plaintiff has sent adjournment application on personal ground. Order thereon. Last chance granted. Put off to 8‑6‑1982 for arguments on injunction application and issues." This shows that matter was adjourned to 8‑6‑1982`forissues'Salso arid then it is admitted by Mr. Paryaram, learned counsel for the present respondents Nos.l to 4 that on this date the Judge being on leave suit was adjourned to 21‑6‑1982 from which date it was again adjourned to 26‑6‑1982 for arguments and issues` and thereafter a late diary was written by the Reader of the Court wherein it is mentioned that the suit is adjourned for filing of objections to the application under Order 7, Rule 11, C.P.C. and arguments on injunction application. Mr. Paryaram, the learned counsel for the respondents, therefore, has submitted that because of late diary it should be presumed that suit was fixed on 26‑6‑1982 only for the purpose of filing of objections and for hearing of injunction application and, therefore, the suit itself could not have been dismissed and that the order of dismissal of the suit on this date is a void order, and therefore, the question of limitation is also not involved in the case. He has placed reliance on the case of Litho craft Corporation v. A. Habib 1987 C L. C 1730. In our view this case does not help the present respondents as in this matter the second application for restoration of the main case was also moved within the period of limitation as permissible under law. The learned counsel for respondents has further placed reliance on the case of Mst. Ghulam Sakina v. Karim Bakhsh (P L D 1970 Lahore 412). In our view this case also does not help the present respondents as in this case it was observed that the suit cannot be dismissed when it is fixed for determining some interlocutory matter such as filing of replication. In this case also Nasim Hasan Shah, J. (as he then was) was pleased to observe:‑ In this revision petition Ch. Abdul Rahman, Advocate has contended that section 5 of the Limitation Act has not been made applicable by any enactment or rule to an application under Order IX, rule 9 of the C.P.C. and, therefore, the Court had no jurisdiction to admit the application after the period of limitation had expired. He further urges that if an application to set aside a dismissal for default under Order IX, rule 9, C.P.C. is made after the period prescribed for making such application has expired, even the inherent jurisdiction of the Court cannot be invoked to set, aside the dismissal." From the above discussion it may be observed that on 21‑6‑1982 the suit was adjourned for hearing of arguments on injunction application as well as for settlement of issues and that late diary written by the Reader of the Court would not be a substitute for the earlier diary but can at the most be an extension or supplement to earlier case diary. It cannot, therefore. be said that the suit on Q 26‑6‑1982 was not fixed for settlement of issues but it can safely be assumed that suit was also fixed for settlement of issues and was rightly dismissed for non- prosecution. The order passed on this date is quite lawful and the finding of the learned Additional District Judge to the effect that it is a void order is without lawful authority. The other aspect of the case is with regard to the period of limitation. The history of the case shows that the suit was initially dismissed on 26‑6‑1982 and thereafter two applications under Order

9. Rule 9, C.P.C. both for restoration of suit were moved at different times which were dismissed on merits, and therefore, this third application under Order 9, Rule 9, C.P.C. which was also moved for restoration of suit itself on 21‑11‑1984 i.e. about 2 years and 5 months after dismissal of the suit is hopelessly time‑barred and in such cases even the inherent jurisdiction of Court is not to be exercised to grant the relief of restoration of the suit as held in the above‑cited case of Mst. Ghulam Sakina v. Karim Bux as from the very beginning the plaintiff had the knowledge of dismissal of his suit. For the above reasons we find that the orders passed by the respondents I Nos.8 and 9 are without lawful authority and the same are quashed with the result that Suit No.119/75 filed by the ancestor of the present respondents Nos.l to 4 stands dismissed. However, there will be no order as to costs as the matter involves legal points. Above are the reasons for our short order announced on 18‑4‑1990. A.A./M‑1218/K Petition accepted.