2002 PLP 636 (MLD)

(b) Civil Procedure Code (V of 1908)

O. IX, Rr. 8 & 9

Suit dismissed for non-prosecution

Restoration of

Limitation

Plea raised by defendant was that application for restoration as well as appeal before Appellate Court were filed beyond the period of limitation

Validity

Where order dismissing the suit could not be passed by the Trial Court, the same could be ignored being an order void ab initio, nullity and passed without jurisdiction

Question of limitation would hardly be relevant in circumstances. Mian Bashir Zafar for Petitioner. Tahir Qureshi for Respondent, Date of hearing: 25th September, 2001. A declaratory suit, filed by the respondent, was dismissed for non-prosecution by the learned trial Court on 20-7-1995. She filed an application for the restoration of the suit which was dismissed by the learned trial Court on 15-9-1996. That order was challenged by her in appeal which was accepted by a learned Additional District Judge, Lahore on 18-7-1998 with a direction to the learned trial Court to proceed with the suit from the stage it was dismissed. This order of the learned Additional District Judge has been challenged by the petitioner through this petition.

2. The learned counsel contends that not only the application for restoration of the suit but also the appeal filed by the respondent before the learned Appellate Court was time-barred. It is contended that the learned Appellate Court has acted illegally in accepting the appeal and restoring the suit.

3. The learned counsel for the respondent contends that the suit was dismissed on a date which was not the date of hearing; order of dismissal for non-prosecution being wholly void and without jurisdiction; same has rightly been set aside by the learned Appellate Court.

4. The perusal of the order sheet shows that certain miscellaneous applications came up before the learned trial Court on 27-6-1995 and the case was adjourned to 12-7-1995 on account of strike of the lawyers. On 12-7 1995, the Presiding Officer of the Court was on leave and the case was adjourned to 20-7-1995 for filing of reply to the application. On the adjourned date i.e. 20-7-1995 as per order sheet of the Court none appeared for either of the parties and the suit was dismissed for non prosecution. It is worth noting that it was not the suit which had been filed for hearing on 20-7-1995 and only miscellaneous applications reference to which finds mention in order dated 27-6--1995 were to be attended to by the Court. However, instead of disposing of or dismissing the said applications the learned trial Judge proceeded to dismiss the suit itself, despite the fact that it was not a date of hearing in the suit and even the petitioner/defendant was not represented. Suffice it to observe that such an order dismissing the suit for non-prosecution was wholly unwarranted. In Mst. Ghulam Sakina and 6 others v. Karim Bakhsh and 7 others (PLD 1970 Lahore 412), it was held that when the case had been fixed for determining some interlocutory matters, the dismissal of the suit for non-appearance could not be ordered and such an order was without jurisdiction which could be set aside under section 151, C.P.C, even. In Rahim Bux and another v, Gul Muhammad and 2 others (PLD 1971 Lahore 746), It was held that the dismissal of the suit on a date when it was not fixed for "hearing" was void, ab initio and no period of limitation would run against such a void order. In Allah Ditta v. Aziz Din (PLD 1981 Lahore 508) the dismissal of the suit on the date which was not the date of hearing was held as void, ab initio, without jurisdiction and nullity in the eyes of law and exercising revisional jurisdiction the suit was ordered to be restored and to be heard in accordance with law. In Rehmatullah and 2 others v. Lal Muhammad (PLD 1986 Quetta 121) also similar view was'taken and it was held that such an order was unwarranted and void where against limitation would not run and even section 151, P.P.C. could be invoked to restore the same. In Qaim Ali Khan v. Muhammad Siddique (1987 SCMR 733) a date fixed for filing replication was held as not a date of hearing and that the suit could not be dismissed for non-appearance of the plaintiff. In Hashim Khan v. National Bank of Pakistan (1992 SCMR 707), it was observed that the suit could not be dismissed or proceeded ex par te if it was fixed for disposal of interlocutory matter. In Muhammad Afzal v. Small Business Finance Corporation and 4 others (1997 CLC 1080) similar view was taken and it was observed that the suit could be restored by exercising powers under section 151, C.P.C. In .the present case, order dismissing the suit for non-prosecution was passed when only certain interlocutory matter had to be considered by the Court. It could not be done in view of string of precedents on the subject. Such an order has rightly been set aside by the learned Additional District Judge for valid reasons. When the order dismissing the suit on 20-7-1995 could not be passed by the learned trial Court, the same could be ignored being an order void, ab initio, nullity and passed without jurisdiction. The question of limitation thus, would hardly be relevant in the context of the controversy. It may be observed that even this Court while exercising revisional jurisdiction under section 115, C.P.C. could order the rectification of an illegality which had been committed by the trial Court and order the restoration of the suit. In this view of the matter, the learned Appellate Court did not commit any irregularity or illegality in passing order dated 18-7-1998. In view of the above, this petition is dismissed with no order as to costs. Parties to enter appearance before the learned trial Court on 22-10-2001 for Proceedings in the suit iii accordance with law. Q.M.H./M.A.K./ M-818/L Revision dismissed.