2009 PLP 351 (CLC)

MUHAMMAD ALAM KHAN, J.

Petitioners Sanaullah Khan and others have filed this writ petition against the Additional District Judge-V, Bannu and 15 others wherein they have challenged the order of respondents Nos.1 and 2 vide which the suit of Mst. Tehzib Khanum dismissed in default of appearance was restored by respondent No.2 and, thereafter, their appeal filed before respondent No.5 was dismissed.

2. Briefly narrated, facts of the case are that the respondents Habibullah Khan and others brought a suit for declaration that they are owners in possession of the landed property measuring

2. Kanals, 8 Marlas and a challenge was put to Registered Deed No.707 dated 13-11-1999 regarding a house comprising Khasra No.265 measuring 4 Marlas seven Sarsaies fully detailed in the head notes of the plaint. This suit was contested by the petitioners. During the proceedings, the learned Presiding Officer of the Court was busy in judicial meeting on 5-9-2007, thus', the date was adjourned on Note Reader to 19-9-2007 and on this date the suit was dismissed in default of appearance. However, the contesting respondents/plaintiffs in the main suit executed a power of attorney in favour of Makhtoom son of Muhammad Aajoon Khan for taking part in the proceedings and consequently on 26-10-2007 an application was moved for the restoration of the above suit. Reply was called by the learned Civil Judge and after hearing arguments of the learned counsel for the parties and perusing the data available on record, the learned Civil Judge/respondent No.2 accepted the application on 8-5-2008 and restored the suit.

3. The petitioners feeling aggrieved filed an appeal before the learned Additional District Judge-V, Bannu and the same was dismissed vide order, dated 31-10-2008 and the impugned order for restoration of the suit was maintained. The petitioners have challenged these orders as illegal, ultra vires, without jurisdiction and without lawful authority under Article 199 of the Constitution of Islamic Republic of Pakistan 1973.

4. We have heard Mr. Muhammad Ayaz Khan Qasuria, Advocate for the petitioners who submitted that the application submitted by the respondents for restoration of the suit was not within time and no request had been made for the condonation of delay. It was also submitted that the" power of attorney executed in favour of Makhtoom son of Muhammad Aajoon Khan was invalid because no specific power for restoration of the suit had been conferred on him and thus the application filed by the attorney was not maintainable under the law. It was also submitted that no evidence pro and contra was recorded by the learned respondent No.2 and thus, the order was termed to be illegal' and without lawful authority and it was prayed that the same be declared as such.

5. We have gone through the available record annexed with the petition and have perused the power of attorney executed by the plaintiffs/respondents in favour of Makhtoom.

6. Perusal of the power of attorney reveals that the special attorney was specifically authorized to pursue the case and even the power of compromise had been conferred on him and in case of any ex parte proceedings, he was specifically authorized to move an application. Regarding the question of limitation, it is apparent from the record that on 15-9-2007, the learned Presiding Officer of the Court was busy in judicial meeting and the case was adjourned on Note Reader to 19-9-2007 on which date the suit had been dismissed in default of appearance. When a case is adjourned on Note Reader, that is not a date of hearing and the lis cannot be dismissed in default of appearance and the limitation will not be governed by Article 163 of the Limitation Act, rather the residuary Article 181 of the Limitation Act will be applicable as held in the case of Mst. Gohar Taja v. Sajid and others 2003 YLR 1994. Furthermore, the order for the dismissal of the suit was ab initio void as the earlier date had been adjourned on Note Reader. So no limitation comes in the way of a party for setting aside a void order.

7. The orders of respondents Nos. 1 and 2 are perfectly sound, just and in accordance with law which calls for no interference in the extraordinary constitutional jurisdiction of this Court. Thus, the same are maintained.

8. In view of the facts and circumstances narrated above, while finding no merit in the instant writ petition, the same is dismissed in limine. H.B.T./222/P Petition dismissed.