1987 PLP 733 (SCMR)

(c) Constitution of Pakistan (1973)‑‑ ‑‑‑Art. 185(3)‑‑Supreme Court Rules, 1980, O. XXII, R. 4‑‑Petition for leave to appeal‑‑All requisite documents not having been filed for reaching correct approach on points raised, Supreme Court declined to interfere with order impugned and refused leave to appeal. Noor Khan v Member, Board, of Revenue and others 1984 SCMR 681 rel. Ch. Muhammad Sadiq, Advocate Supreme Court and Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioner. Ch. Muhammad Aslam, Advocate‑on‑Record (absent) for Respondent. Date of hearing: 9th February, 1987. MIAN BURHANUDDIN KHAN, J.‑‑Muhammad Siddique, respondent had filed a suit for possession through pre‑emption against Qasim Ali Khan petitioner in the Court of the learned Civil Judge, Ferozewala, District Sheikhupura. The suit was fixed for replication on 7‑3‑1972 but due to the non‑appearance of the respondent, the suit was dismissed under Order I X rule 8 C . P. C , per order, dated 7‑3‑1973. Respondent filed an application for the restoration of the suit which was dismissed vide order of the learned trial Judge, dated 14‑6‑1975. Appeal against the aforesaid order, dated 14‑6‑1975 was filed before the learned District Judge who remanded the case to the trial Court per order, dated 2‑2‑1977. The learned Civil Judge, Ferozewala again dismissed the suit vide order, dated 7‑11‑1978. This order was challenged in appeal before the learned District Judge who dismissed the appeal per order, dated 15‑1‑1979.

2. Respondent filed civil revision in the Lahore High Court challenging the order of the learned District Judge, which was allowed by a learned Single Judge vide the impugned order, dated 11‑12‑1979 on the ground that the date fixed for the filing of replication is not a date of hearing of the suit, and, therefore, the suit cannot be dismissed in default as it was not intended that there should be hearing of the suit in the ordinary sense of the word i.e at which either evidence is to be taken or arguments heard, or questions relating to the determination of the suit, considered but is merely for some interlocutory matter to be decided.

3. We have gone through the impugned judgment of the learned High Court and agree with the observation that if there is a date fixed in a suit which is not for its hearing, the plaintiff cannot be penalized his absence on that date. This observation is according to the settled principles of law.

4. We find that the learned counsel failed to file all the requisite documents for reaching correct approach on the points raised before us. The remand order of the learned District Judge, dated 2‑2‑1977 whereby the case was remanded to the trial Court has not been placed on record. As complete documents have not been filed alongwith this petition as laid down by this Court in Noor Khan v. Member, Board of Revenue and others 1984 SCMR 681 we find no reason to interfere with the impugned order. Leave refused. Petition dismissed. M.I./Q‑3/S Petition dismissed.