1993MLD73 (PLP)

KHAWAJA MUHAMMAD SAEED, J: ‑‑The present appeal has been filed against the order of District Judge, Mirpur dated 26th of February, 1992, whereby the suit filed by the plaintiff‑appellant was dismissed for non -prosecution and for non‑compliance of the order of the Court passed on 22nd January 1992 whereby the plaintiff‑appellant was directed to file proclamation fee with the office within one week for effecting service on defendant respondent No.2.

2. Necessary facts giving rise to the present controversy briefly stated are that plaintiff‑appellant filed a suit against defendant‑respondents for the recovery of Rs.1,45.000 with interest at the rate of Rs.12 per cent from 27th of March,) 990 m the Court of District Judge, Mirpur on 28th of December. 1991. In this suit it was contended by the plaintiff‑appellant that Plot No.117 measuring 2‑1/2 Marlas situate in Dudyal Hamlet, District Mirpur was originally allotted in the name of Muhammad Azam Khan, pro forma defendant who transferred the same in favour of defendant‑respondent No.1. It was further alleged to the suit that defendant‑respondent No.1 entered into a written agreement on 27th of March, 1990 whereby he transferred the said plot to the plaintiff‑appellant for a consideration of Rs.1,45,

000. It was further contended in the suit that three months back before the filing of the suit, the plaintiff‑appellant came to know that no plot was in existence at the spot for which defendant‑respondent No.1 had taken a sum of Rs.1,45,000 from him. He, therefore, filed the above‑referred suit for the recovery of the aforesaid amount with interest thereon from 27th of March, 1990, the date when the agreement was written between the parties. 3.In this suit, notices were issued for the service of defendant‑respondents. On 22nd of January, 1992, Chaudhary Muhammad Taj, the learned counsel for the contesting respondent No.l appeared on his behalf and filed power of attorney. However, the notice issued for the service of the defendant‑respondent No.3 was not received back after due service, as such the Court ordered that fresh notices shall issue for his service. However, per report of process‑server defendant‑respondent No.2 had gone to England as such the Court ordered that service on this defendant‑respondent shall be effected through proclamation. The plaintiff‑appellant was directed to deposit proclamation fee within one week vide order dated 22nd of January, 1992. The case was posted for further proceedings to 26th of February, 1992. On this date neither the plaintiff‑appellant turned up in the Court nor he had deposited the process fee for effecting service on pro forma defendant No.2. In these circumstances, the order under appeal was passed by the Court, whereby the suit of the plaintiff‑appellant was dismissed.

4. We have heard the learned counsel for the parties and have gone through the record of the case with utmost care.

5. A preliminary objection was raised by the learned counsel for the defendant‑respondent No.1 to the effect that the order of dismissal of the suit is not a decree within the meaning of section 2(2) of the Code of Civil Procedure, as such right of appeal has wrongly been availed by the plaintiff appellant. He further argued that under Order 9, Rule 4 of the Code, the plaintiff‑appellant should have applied for the restoration of his suit after disclosing sufficient cause for his non‑appearance.

6. Raja Muhammad Siddique Khan, the learned counsel for the plaintiff appellant argued that both the defendant‑respondents Nos.2 and 3 were not necessary party, therefore, their presence before the Court was not necessary for adjudication of the dispute between the parties on merits, as such, the suit was wrongly dismissed for non‑compliance of the order of the Court dated 22nd of January, 1992. He further argued that the impugned order was passed under Order 17, Rule 3, C.P.C. therefore, he has rightly invoked the appellate jurisdiction of this Court against the said order.

7. We have given our anxious thought to the arguments advanced for and against the controversy in hand.

8. In our opinion, the impugned order was passed under Order 9, Rule 2, C.P.C. and Order 9, Rule 3, C.P.C. Both the orders, for the convenience of the reference are reproduced as under: ‑‑‑ "Order 9, Rule 2‑‑‑Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court‑fee or postal charges (if any) chargeable for such service, the Court may make an order that the suit be dismissed: Provided that no such order shall be made although the summon has not been served upon the defendant, if on the day fixed for him to appear and answer he attends in person or by agent when he is allowed to appear by agent. Order 9 Rule 3‑‑‑Where neither party appears the suit to be dismissed. Where neither party appears when the suit is called for hearing, the Court may make an order that the suit be dismissed." Against such like orders, remedy has been provided specifically under Order 9, rule 4 of the Code. We fully agree with the learned counsel for the plaintiff appellant that the law favours adjudication of disputes raised in pleadings by the parties on merits, but at the same time we cannot ignore that for the safeguard of interest of justice, the legal formalities and procedural provisions must be followed by the parties. Under Order 9, Rule 2, C.P.C. the Court can pass an order of dismissal of the suit, where the requisite charges necessary for further progress of the suit, have not been paid on the date fixed. No doubt, the Court has power to extend time but in this case, the plaintiff‑appellant failed to appear in the Court on the date fixed for hearing. In these circumstances, the trial Court had no option but to dismiss his snit under Order 9, Rule 3, C.P.C. An order of dismissal passed under Order 9, Rule 3, C.P.C. is not a decree within the ambit of section 2(2) of the Code, therefore, no appeal lies against it. In the light of the above discussion, the plaintiff‑appellant has wrongly filed the present appeal against the impugned order.

9. In the aforesaid view of the matter, the appeal being incompetent stands dismissed with costs. AA./532/H.CA. Appeal dismissed.