2020 PLP 1077 (CLC)

CHAUDHARY KHALID YOUSAF, J.

The captioned appeal has been directed against the impugned judgment and decree dated 27-1-2017, passed by the learned Additional District Judge Mirpur, whereby, suit filed by plaintiff-appellant was rejected under Order VII, Rule 11 of the Civil Procedure Code, 1908.

2. Precise facts forming background of the instant appeal are that plaintiff-appellant filed a suit for specific performance and cancellation of agreement dated 07.08.2013, against defendants-respondents, stating therein, that land comprising survey No.861, measuring 02 Kanals 15 marlas, situated at village Dhairi Barowan is in the ownership and possession of plaintiff. It was further stated that defendant agreed to buy land measuring 01 Kanal 05 marlas from the above said land against consideration of Rs.8,25000/- and an agreement was also written. It was maintained that defendant-respondent No.1, did not pay agreed amount and punchayat was held between parties, whereby, it was decided that plaintiff would execute sale deed in favour of defendant No.1, and he would pay an amount of Rs.34,50,000/- to plaintiff-appellant and would cancel agreement dated 07.08.2013. It was maintained that defendant-respondent No.1, neither paid the amount nor took any step to cancel the agreement. After filing of the suit, defendant No.1, appeared before Court and submitted an application under Order VII, Rule 11 of Civil Procedure Code, 1908, stating therein, that earlier suit of plaintiff-appellant was dismissed for non-prosecution and application for restoration was also dismissed being time barred, vide order dated 29.01.2016. The learned trial Court after hearing the learned counsel for parties, rejected the suit under Order VII, Rule 11 of Civil Procedure Code, 1908, vide judgment and decree dated 27.1.2017, hence, the instant appeal.

3. Ch. Muhammad Basharat, Advocate, the learned counsel for appellant strenuously argued that order of the trial Court is against the law, on the ground that when the earlier suit was dismissed, the case was not fixed for hearing due to which, the impugned order is not legal. He further submitted that when the suit of plaintiff-appellant was dismissed for want of prosecution, the same was fixed for summoning of the defendants, therefore, the same was not covering in the definition of Order IX, Rule 8 Civil Procedure Code, 1908. He further argued that the impugned judgment and decree are against the natural justice, hence, craved for acceptance of appeal.

4. Conversely, Ch. Muhammad Riaz Alam, Advocate, appearing on behalf of the respondents-defendants, while controverting arguments of the learned counsel for appellant submitted that the earlier suit filed by plaintiff-appellant was dismissed for want of prosecution under Order IX Rule 8 of Civil Procedure Code, 1908, therefore, fresh suit on the same cause of action is not maintainable, therefore, the learned. Additional District Judge, Mirpur, rightly rejected the same under Order VII, Rule 11 of Civil Procedure Code, 1908. He further submitted that against dismissal order dated 16.06.2015, an application for restoration of the same was also dismissed vide order dated 29.01.2016, which order attained finality under law. The learned counsel defended the impugned judgment and decree with full force and submitted that appeal filed by appellant is not maintainable, hence, craved for dismissal of appeal.

5. I have heard the learned counsel for parties, perused the contents of appeal and examined the record made available with utmost care.

6. A contemplate perusal of record reveals that plaintiff-appellant filed a suit for specific performance and cancellation of agreement dated 07.08.2013, against defendants-respondents. After filing of the suit, an application under Order VII, Rule 11 of Civil Procedure Code, 1908, was filed by respondent-defendant No.

1. The learned trial Court after hearing the learned counsel for parties, rejected the suit under Order VII, Rule 11 of Civil Procedure Code, 1908, vide judgment and decree dated 27.1.2017. The moot point involved in the instant case is that whether the earlier suit filed by plaintiff was dismissed under Order IX, Rule 8 of Civil Procedure Code, 1908, and plaintiff is precluded to file fresh suit or not? For proper appreciation it is appropriate to reproduce Order IX, Rule 8 of Civil Procedure Code, 1908, which reads as under:- "Procedure where defendant only appears.

Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder." A bare reading of the aforementioned rule makes it abundantly clear that if the case was fixed for hearing, then under Order IX, Rule 9 of Civil Procedure Code, 1908, fresh suit is precluded. As per law, date of hearing means the date when the court has to apply its mind on the pleadings of the parties, when issues are framed, evidence is to be recorded, and arguments are to be heard. In the instant case, the lis was fixed for summoning of defendants Nos. 2 and 3 and meeting the deficiency of Court fee and due to non-appearance of plaintiff, the same was dismissed for want of prosecution. The aforesaid point came under consideration before the Hon'ble Apex Court in case titled Ghulam Mustafa v. Aurangzeb [2008 SCR 87]. At page 91, of the report, it was held as under:- " .. As far the date of hearing is concerned, it has been laid down in various judgments that the date of hearing means the date when the Court has to apply its mind on the pleadings of the parties. It has been repeatedly held that the date of hearing means (i) when issues are framed (ii) evidence is to be recorded, and (iii) arguments are to be heard. In this way, 28.02.2006, was not a date for hearing. An appeal can be dismissed for default of appearance only when the appellant does not appear before Court on the date of hearing." As the earlier suit of appellant-plaintiff was dismissed for want of prosecution, vide order dated 16.06.2015, when the same was not fixed for hearing, therefore, according to my considered view, the appellant-plaintiff can file the fresh suit on same cause of action and dismissal of plaint under Order VII, Rule 11 of Civil Procedure Code, 1908, vide order dated 27.01.2017, is not sustainable.

7. The epitome of the above discussion is that by accepting the instant appeal, the impugned judgment and decree passed by the learned District Judge dated 27.01.2017, is recalled. The case is remanded to the trial Court for decision afresh on merits after recording evidence of the parties. ZC/11/HC(AJ&K) Case remanded.