1983 PLP 1398 (CLC)

Mian Pervaiz Akhtar for Respondent No.

3. Date of hearing : 22nd May, 1983. These are Writ Petition Nos. 1398/82, 1399/82 and 1400/82 under Article 9 of the P. C. O. 1981, whereby Mst. Sughra Kalsoom petitioner wants this Court to declare the order dated 2nd November, 1980 passed by the learned Senior Civil Judge and the order dated 31st May, 1982 of the learned Additional District Judge, Multan, to be without lawful autho rity and of no legal effect. Since these petitions arise from identical orders passed in three suits between the same parties, therefore, I pro pose to dispose them through single judgment.

2. The facts leading up to this petition in brief are that on 14th November, 1978 Shaukat Hayat Khan respondent No. 3 filed three‑suits for possession by pre‑emption against Mst. Sughra Kalsoom petitioner. On 15th November, 1978 the trial Court issued summons to the petitioners/ defendants for 16th January, 1979 and also directed respondent No. 3/ plaintiff to deposit l/5th i.e. Rs. 2,000 before next date. On 16th January, 1979 neither respondent No,. 3/plaintiff nor his counsel appeared before the trial Court, therefore, the suits were dismissed for non‑prosecution under Order IX, rule 3, C. P. C. It may be noted here that the 1/5th had also not been deposited before 16th January, 1979 as directed by the Court. The trial Court, however, did not pass any order under section 22 of the Pre‑emption Act and simply dismissed the suit for the non‑appearance of the parties. On 17th February, 1979 Shaukat Hayat Khan respondent No. 3 moved an application under Order IX, rule 4, C.P.C. for the resto ration of the suit on the ground that the impression given to him was that the next date was 16th February, 1979. This application was Supported by his affidavit. To prove the cause of his absence, he entered into witness box and also produced Munshi Abdul Qadir, Clerk of his counsel. The Although respondent No. 3 plaintiff had already deposited 1/5th on 15th February, 1979 i.e. two days before the filing of application for restoration, yet to validate the deposit, he applied for the extension of time to deposit 1/5th which was allowed on the same day i.e. 2nd November,1980. Feeling aggrieved Mst. Sughra Kalsoom filed appeals which were dismissed by the learned Additional District Judge, Multan, respondent No. 1 hence these petitions.

3. Before me the learned counsel for the petitioner has raised following points :‑ (i) that application dated 17th February, 1979 being barred by time i.e. 30 days prescribed by Article 163 of the Limitation Act, the A impugned order of learned Senior Civil Judge dated 2nd November, 1980 restoring the suit (dismissed for non‑prosecution on 16th January, 1979) and order dated 31st May, 1982 of the learned Additional District Judge, confirming order dated 2nd November, 1980 have been passed without lawful authority ; (ii) that the order dated 2nd November, 1980 whereby the time for deposit of 1/5th was extended having been passed without notice to the petitioner/defendant, was also illegal and without jurisdiction., As for point No. (i), the learned counsel explained that since the summons issued to respondent No. 3/defendant i.e. Annexure `N' were for the final disposal of the suit, therefore, the first date i.e. 16th January, 1979 being a date for hearing of the case, the application moved by respondent No. 3/plaintiff after 32 days of the dismissal in default, was barred by two days and as such neither the trial Court had jurisdiction to restore the suit nor was the learned appellate Court legally competent to confirm the order of the trial Court restoring the suit. Reliance has been placed on cases Muhammad Din v. Zabardast Khan and another (P L D 1972 A J & K 7) and Khan Bahadur H. M. Habibullah v. Sheikh Mahboob Alam (P L D 1959 (W. P.) Kar. 143).

4. As against this the learned counsel for respondent No. 3 has defended the impugned orders on the ground that since the date when the suit was dismissed for non‑prosecution was not a date fixed for the hearing of the case within the meaning of rule 3, Order IX, C. P. C. therefore, the order of dismissal for non‑prosecution being void ab initio, no limitation was required to set aside the same. Further, the trial Court had an absolute discretion to extend the time for the deposit of 1/5th of the pre emption money. Reliance has been placed on Mst. Ghulam Sakina and 6 others v. Karlin Bakhsh and 7 others (P L D 1970 Lab. 412) and Rahim Bux and another v Gul Muhammad and 2 others (P L D 1971 Lah. 746).

5. After having considered the arguments advanced by the learned counsel for the parties in the light of their record, I am inclined to hold that even if the case was fixed for 16th January, 1979 that was not a date of hearing within the meaning of rule 3, Order IX, C. P. C. and as such the order of dismissal was void ab initio and that no time having been prescribed to set aside such orders, Article 163 of the Limitation Act was not applicable in the circumstances of the case. Further the trial Court in the circumstance was quite competent to extend the time for the deposit of 1/5th. The relevant law may be reproduced with advantage :‑‑ "Section

27. C. P. C.‑Where a suit has been duly instituted, a sum mons may be issued to the defendant to appear and answer the and may be served in manner prescribed." "Order IX rule 3, C. P. C.‑Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed." "Order v, rule S, C. P. C.‑The Court shall determine, at the time of issuing the summons, whether it shall be for the settlement of issues only, or for the final disposal of the suit ; and the summons shall contain a direction accordingly." The plain reading of rule 5 of Order V, C. P. C. indicates that it is the duty of the trial Court to determine at the time of issuing the summons whether it shall be for the settlement of issues only or for the final disposal of the suit and the summons shall contain a direction accord ingly. In the case in hand I find that a general order to summon the defendant was passed and although there was no direction at all for the issuance of the summons for the final disposal, yet the office issued summon for the final disposal of the case, therefore, I am of the opinion that since there was no order of Court for the issuance of the summons for final disposal of the suit, therefore, the summons issued to defendants for B final disposal of the suit, were illegal. For these reasons I am inclined to hold that the summons were only for the appearance of the parties and nothing more. That being the position, the date i.e. 16th January, 1979 cannot be held as a date of hearing within the meanings of rule 3 of Order IX, C. P. C. and as such the Court had no power at all to dismiss the suit for non‑prosecution. The order, therefore, being void ab initio Article 163 is not applicable at all and no time is fixed for setting aside such void order. As far the case law cited by the learned counsel for the petitioners, I find that the same is not applicable to the circumstances of this case inasmuch as in case of Muhammad Din v. Zabardast Khan it has been held than an "adjourned date" is a date of hearing within the meanings of Order IX, C. P. C. and if a case is fixed expressly for written statements it amounts to a date of bearing not only because the Court hears the defendant for the first time as to what he has to say against the claim brought against him by his opposite party, but also because the Court is free to proceed immediately with their examinations and the settlement of issues. The case in hand however is not of that type inasmuch as 16th January, 1979 was neither an adjourned date nor there was any specific order passed by the Court requiring respondent No. 3/defendant to file the written statement. As far the case Khan Bahadur H. M. Habib Ullah v. Sheikh Mahboob Alam, therein, the hearing of the suit has been deter mined in accordance with the rules of Chief Court of Sind (original side) which are not applicable to Punjab. As far point No. (ii) raised by the learned counsel, I am convinced that the trial Court had ample discretion to extend the time or not. 9inca‑the Courts below have given reasons for the extension of the time, I am not inclined to interfere with the discretions used by the Courts of competent jurisdiction.

6. For what has been stated above, there being no merits in these petitions, the same are dismissed.

7. Before parting with the judgment I would like to add that, un, fortunately, the trial Courts in Punjab do not follow the mandatory pro visions of rule 5 of Order V, C. P. C. Summons to the defendants area issued in routine and most of the orders in this regard are written by the clerks. I expect that in future it shall not be repeated and the trial Courts would follow the provisions of rule 5 of Order V, C. P. C. strictly and through speaking order would determine at the time of issuing the summons, whether it shall be for the final disposal of the suit and the summons would be issued in accordance with the directions given by the trial Courts under rule 5, Order V, C. P. C. M. Z. M. Petition dismissed.