2002 PLP 189 (PLC)

(Sd/.) (Bahader Ali) Senior Member'

2. Appellant on 13‑3‑2000 filed an Application (No.7 (42)/2000‑1) under section 151, C.P.C. for restoration of petition/case dismissed in default on 11‑5‑1998. Application under section 5 of Limitation Act was also annexed with it. The respondents appeared to contest the application but written reply was not filed. No evidence was recorded. After perusal of record and hearing learned counsel for the petitioner/appellant; application for restoration of case was dismissed vide order dated 27‑7‑2000.

3. Leafing aggrieved against order dated 27‑7‑2000, dismissing the application for restoration of case/petition; this appeal has been filed. The respondents have appeared and contested the same:

4. We have scanned the record with utmost care and caution. Learned counsel appearing for parties have also been heard at some length:

5. The learned counsel for the appellant contended that learned member has not applied his judicial mind and failed to appreciate the facts and law on the subject. That in peculiar circumstances and history of this case, Article 181 of. Limitation Act was applicable and limitation for filing of application for restoration was three years. Similarly; it is argued that there was sufficient ground and good cause for restoration of lis. On the, other hand, learned counsel for the respondents have maintained that Article 163 of Limitation Act was attracted in the matter. That period of limitation was only 30 days, which started from the date of dismissal.

6. After scrutiny of record; it appears to us, that on 29‑4‑1997, arguments were heard in the main petition under section 22‑A (8)(g) of I.R.O., 1969. It was fixed for orders for 10‑6‑1997. On that date, it was adjourned for 1‑7‑1997 for orders. Again order was not announced as learned counsel for respondents moved an application for dismissal of petition. Adjourned for 17‑7‑1997 for reply and orders. From 17‑7‑1997 to 11‑11‑1997 no interim order was written/recorded on the order sheet. What happened during the said period of four months is mystery. Thereafter, .on 11‑11‑1997, file was placed before same Single Bench which passed the following order:‑‑ "Presence as before. To come up on 5‑1‑1998." It was not mentioned that where was file during the period from 17‑7‑1997 to 11‑11‑1997. It was not made clear that how counsel for the parties appeared on 11‑11‑1997. It was not shown that for which purpose petition was fixed on 5‑1‑1998. Anyhow; on 5‑1‑1998 Reader of learned Single Bench adjourned the case as under:‑‑ "Counsel for the parties present. Learned Member is on tour. To come up on 10‑3‑1998." On 10‑3‑1998; learned Member passed order "As I am busy in the Full Bench, case is adjourned to 11‑5‑1998." On 11‑5‑1998 case was dismissed in default.

7. The above resume of facts or detail of orders reveals that necessary care or caution was not exercised by the learned Single Bench; which was expected from him. On 10‑3‑1998; no party was present. Case was adjourned for 11‑5‑1998. On that date, case was dismissed. It is manifestly clear that C for 11‑5‑1998, appellant/petitioner of his learned counsel were having no notice. Likewise case was fixed for orders. It was not a date for hearing. It means that case was dismissed in default on the date, which was not fixed for hearing and about which petitioner had no notice.

8. Now it will be seen; what law says about it. It is well‑settled law that when dismissal of suit is ordered on the date not fixed for hearing; then order of dismissal would not fall under Order 9, rule 8, C.P.C. and such an order would be without jurisdiction. That order has to be treated as void ab initio and period of limitation for restoration would be governed by Article

181. Limitation Act. It was so held in (1986 CLC 1320 (SC (AJ&K).

9. In a similar proposition 14on'ble Lahore High Court Lahore (See PLD 1981 Lah. 508) held that order of dismissal of suit under Order 9, rule 8, C.P.C. on a date not fixed for hearing of suit void ab initio; without jurisdiction and nullity in the eyes of law. That no period of limitation runs; against orders which are nullity in the eyes of law. It was further observed therein that Order 9, rule 8, C.P.C. applies where dismissal is under Order 9, Rule 8, C.P.C. namely on a date fixed for hearing of a case. But when the case is dismissed on a. date; which was not fixed for its hearing; then the initial order of dismissal is not under Order 9, rule 8, C.P.C. That in section 151, C.P.C. it is written "Nothing in this code shall be deemed to limit or otherwise affect the inherent power of Court to make such orders as may be necessary for the ends of justice and to prevent abuse of process of Court:

10. In view of above facts and law on the subject, it is crystal clear that in this case; there was an abuse of process of law or Court. The petition/case was dismissed in default on a date not fixed for hearing. The dismissal order was passed on the date, about which petitioner/appellant never had any notice. The order dated 11‑5‑1998 was void ab initio, nullity in the eyes of law and without jurisdiction. It is, therefore, held that Article 163 of Limitation Act is not applicable in this case. No limitation runs in respect of such‑like orders. For restoration of suit/case/petition resort can be made to the provision of section 151, C.P.C. That application for restoration of petition/case was not time‑barred. That there were sufficient grounds for

11. For reasons recorded above, this appeal is allowed. As a result of it, impugned order dated 27‑7‑2000 is set aside. By this way: Application (No.7(42)/2000‑L) for restoration of petition under section 22‑A (8)(g) of I.R.O., 1969 is accepted and main Petition (No.4‑A(608)/95‑L alongwith Application No.24 (599)/95‑L) stands restored, which is remanded/entrusted to learned Single Bench at Lahore with a direction to proceed with it in accordance with law. In the circumstances of appeal no order as to costs. H.B.T./52/NIRC Appeal allowed.