1983 PLP 1061 (CLC)

S. IX, r. 8 & S‑115‑Dismissal of suit for non‑prosecution‑Appli cation for leave to amend written statement fixed for arguments on date when suit dismissed by trial Court on account of absence of petitioner‑Suit, held, could not be said to have been called on for hearing on that date within purview of O. IX, r. 8, Civil Proce dure Code and no order dismissing suit could have been passed Order of dismissal being patently illegal set aside and it remanded to trial Court for decision according to law. Sohrab Aslam for Petitioner. Shahid Hussain Kadri for Respondent. Date of hearing : 9th March, 1983. The facts relevant for the purpose of disposal of this petition seeking revision of the order of the learned Civil Judge, Ferozewala, dated the 19th April, 1973, rejecting the petitioner's application for setting aside the dismissal of the suit recorded by the learned Civil Judge under Order IX, rule 8 of the Code of Civil Procedure on the 6th May, 1972 and of the learned District Judge, Sheikhupura, dated the 3rd November, 1973 dis missing the petitioner's appeal against the first mentioned order are these. In the suit instituted by the petitioner on the 19th November, 1969 for possession by pre‑emption of 41 Kanals 13 Marlas of land in dispute, situate in the area of village Kakriwala, Tehsil Ferozewala, district Sheiic hupura, the vendees‑respondents moved application on the 8th February, 1972, for obtaining leave to amend the written statement. The petitioner filed reply to the application on the 11th March, 1972 and the suit was adjourned to the 6th May, 1972 for hearing arguments in regard to the application. On the last mentioned date the petitioner was found to be absent though the respondents were present. Therefore, the learned trial Civil Judge dismissed the suit under Order IX, rule 8 of the Code of Civil Procedure. The petitioner's application for the restoration of suit as also his appeal having failed before the learned trial and the appellate Courts below he has invoked the revisional jurisdiction of this Court. 2. The learned counsel for the respondents could not controvert the legal position that the suit could not be‑ said to have been called on for hearing within the purview of Order IX, rule 8 of the Code of Civil Procedure on the 6th May, 1972, because it was only the application for leave to amend the written statement that was fixed for arguments that day and. therefore, no order dismissing the suit could have been passed. The order of dismissal made by the learned Civil Judge was patently illegal. This aspect of the case was not attended to by the learned Civil Judge while disposing of application for restoration of the case nor by the learned District Judge while deciding the appeal. The impugned orders cannot stand the test of scrutiny by this Court in revision. The petition .is accor dingly accepted, the impugned orders are set aside and the suit is remanded to the learned trial Court (of Mr. Gulzar Ahmad Butt, Civil Judge) Feroze wala, for trial according to law. The parties are left to bear their own costs. 3. As the suit is fairly old, the learned trial Court is directed to decide it within three months. Likewise the learned District Judge or the Addi tional District Judge, Sheikhupura, hearing appeal against the decision of the learned Civil Judge will dispose it of within three months. The parties have been directed to appear before the Court of Mr. Gulzar Abmad Butt, Civil Judge, Ferozewala, on the 30th March, 1983. M.Y.H. Revision petition accepted.