PLD1966 Azad J & K 10 (PLP)

Muhammad Shafi for Respondent No.

2. Abdul Haiy for Respondents Nos. 3 to

6. MUHAMMAD SHARIF, A. C. J.‑This is an appeal against the orders of a learned Single Judge of this Court, dated 27‑6‑64 and 5‑6‑

64. By order, dated 5‑6‑64 a stay order which had been issued ex parte in favour of Muhammad Akbar Butt plaintiff on the institution of the suit by him against the defendants‑respondents, was vacated after hearing the objections of the defendants. By order, dated 27‑6‑64, the suit was dis missed because the plaintiff or his counsel failed to turn up when the case was called. The learned Single Judge while dismissing the suit also burdened the plaintiff with special costs under section 35‑A, C. P. C. holding the suit to be frivolous and vexatious. A preliminary objection has been raised by Kh. Muhammad Shafi Advocate for the respondent No. 2 that the appeal against the order dated 5‑6‑64 was time‑barred inasmuch as under Article 151 of the Limitation Act the limitation provided for an appeal from an order passed by a learned Single‑ Judge of the High Court on the original side is 20 days only and the appeal was‑ obviously beyond 20 days. Mr. Farooqi learned counsel for the appellant has dropped his appeal as against the order, dated 5‑6‑

64. This disposes of the preliminary objection. Now we are left only with the appeal so far as it concerns the order, dated 27‑6‑

64. As regards the appeal against the order, dated 27‑6‑64 the contention of the learned counsel for the respondents is that this is an order falling under Order IX, rule 8, C. P. C. and no appeal lies from such an order. The reply of Mr. Farooqi is that the order is not one for dismissal of the suit for default of appearance of the plaintiff but amounts to a decree and is, therefore, appealable. Reading the order as a whole, it is apparent that the learned Single Judge had dis missed the suit for default of appearance of the plaintiff and his counsel. The learned Single Judge called the case but none appeared on behalf of the plaintiff, he, therefore, ordered that the case shall be called again. When the case was called again towards the close of the day's work, still none appeared on behalf of the plaintiff, therefore, the learned Single Judge dis missed the suit but at the same time awarded compensatory costs amounting to Rs. 600 holding the suit to have been false and vexatious. The order, in our opinion, amounts to an order of dismissal of the suit for the default of appearance of the plaintiff and his counsel and falls under Order IX, rule 8, C. P. C. though the learned Single Judge has not written that he was dismissing the suit under the said provision. There was no, trial of the suit on merits. Mr. Farooqi learned counsel for the appellant has also argued that the provisions of Order IX, rule 8, C. P. C. would not apply because the suit had not been fixed for hearing but only for filing the written statements. His contention is that when evidence has to be recorded or arguments have to be heard or some decision has to be given, it amounts to a hearing not otherwise. Hear ing is not only when evidence has to be recorded by the Court but also when the Court applies its mind to the relevant claims of the parties. 27‑6‑64 was the date fixed for filing of the written statements of the defendants. When written statements are filed the Court records the statements of the parties and strikes issues. The recording of the statements of the parties or the striking of the issues amounts to hearing because the Court at this stage applies its mind to the relevant claims of the parties. Disagreeing with the learned counsel for the appellant we hold that the provisions of Order IX, rule 8, C. P. C. apply to the facts of the present case. A dismissal of a suit under Order IX, rule 8, C. P. C. pre cludes a fresh suit on the same cause of action. But two other remedies are open to the plaintiff.

(1) to apply under the next rule, i.e., .Order IX, rule 9 for restoration of the suit, or (2) to apply for a review of the order. He has no remedy by way of an appeal. Of course the remedy of revision is available to the plaintiff but not in the present case before us because this is an inter‑Court appeal. The High Court has the power of revision against the orders passed by the Courts subordinate to it but not inter se. We, therefore, hold the appeal to be incompetent. The order awarding com pensatory costs under section 35‑A is, no doubt, appealable but then the plaintiff-appellant has to pay court‑fees on Rs. 600 if he wants his appeal to be heard as against the order awarding costs of Rs. 600 against him. There is no request or offer by the learned counsel for the appellant to pay court‑fees on Rs.

600. He has appealed as from a decree. If he does not want to pay court‑fees on Rs. 600 we cannot force him to do so. The appeal fails and is dismissed with costs. It may be noted that the learned counsel for the appellant had taken up the position that arguments had been addressed on the vacating or otherwise o f the stay order on 21‑5‑64 and the judgment had been reserved on this point and no date of hearing had been fixed and that is why he failed to appear before the trial Judge when the suit was dismissed for default. The learned counsel for the defendants‑respondents have pointed out towards the order‑sheet of the learned Single Judge wherein it is recorded in the order, dated 21‑5‑64 that judgment in this behalf shall be delivered on 4‑6‑

64. The order, dated 4‑6‑64 also records the presence of the learned counsel for the plaintiff and recites that the order is not ready and shall be announced tomorrow. Then the order, dated 5‑6‑64 again records the presence of the learned counsel for the plaintiff as also of the other counsel for the other parties and recites that the order on the stay order has been announced and the case is now fixed for 27‑6‑64 for filing the written state ments. However, we need not go into this question because the appeal is not competent. S. A. H./S. Q. Appeal dismissed.