P L D 1964 Baghdad﷓ul﷓Jadid 8 (PLP)

Manohar Das v. Birandare Shaikhupurain A I R 1963 Lah. 280; Mst. Barkat Bibi v. Fateh Ali P L D 1949 Lah. 432 and Messrs Ghulam Farid‑Muhammad Latif v. The Central Bank of India Ltd., Lahore P L D 1954 Lah. 575 ref. Mustafa Khan for Petitioners. M. E. Rana for Respondent. This judgment will dispose of Civil Revisions Nos. 9 and 10 of 1962/BWP. The facts and the points involved in the two petitions are the same.

2. These two revision petitions are against the order of the learned District Judge, Rahimyarkhan, dated the 1st of Decem ber 1961, dismissing the appeals filed by the petitioners against the orders of the learned Civil Judge, Khanpur, dated the 8th of February 1961, dismissing the applications for the restoration of the plaintiffs' suits dismissed under Order IX, rule 8.

3. The relevant facts are as follows:‑In the two civil suits evidence was being led on behalf of the plaintiff petitioners. The office‑Qanungo was one of their witnesses who attended the Court but his evidence could not be recorded as a file, which contained some documents, which were to be proved by the office‑Qanungo, was not there. Consequently, on 29th of November 1957, the learned civil Judge passed an order dispensing with the presence of office‑Qanungo till the relevant file was received. The relevant order is as follows:‑‑ After the 29th of November 1957, the cases were adjourned till the 13th of June 1960. The order on that date was that the file be summoned and the Robkar be given to the plaintiffs so that they arrange for the production of the file and the cases were adjourned to the 13th of July 1960. Nobody appeared on behalf of the plaintiffs on that day. Consequently, the suits were dismissed in default. Applications for restoration were filed on the 15th of July 1960. The plaintiffs in their applications stated that one of them (Ghulam Mujtaba) had gone to Rahim yarkhan to fetch their counsel while the other plaintiffs had gone to the railway station to receive the counsel and his brother. The train "Sindh Express" by which the other plaintiff‑peti tioner was coming arrived late consequently when they reached the Court along with their counsel the suits had already been dismissed. In support of this application Rahim Bakhsh plaintiff examined himself as his witness and he also examined Sher Muhammad. Sher Muhammad supported the plaintiff petitioners in so far as he stated that on the 13th of July 1960, he had also come by "Sindh Express" from Khanpur, the train arrived late at Rahimyarkhan where he met Ghulam Mujtaba petitioner and Ch. Altaf Hussain Advocate. The respondents did not lead any evidence in rebuttal not even their own statement. The learned civil Judge, however, dismissed the applications for restoration. The appeals before the learned District Judge, were also dismissed.

4. The learned counsel for the petitioners has urged that the cases were not fixed for a hearing on the date those were dis missed in default and consequently the order of dismissal was without jurisdiction. Secondly, that the plaintiff‑petitioners had shown sufficient cause for their absence and the evidence of the plaintiff‑petitioners was unrebutted, it should have been believed and the suits should have been restored on payment of costs. The learned counsel for the plaintiff‑petitioners has cited Manohar Das v. Birandare Shaikhupurain (A I R 1963 Lah. 280), Mst. Barkat Bibi v. Fateh Ali (P L D 1949 Lah. 432) and Messrs Ghulam Farid‑Muhammad Latif v. The Central Bank of India Ltd, Lahore (P L D 1954 Lah. 575) in support of his first contention. The learned counsel for the respondents contended that the cases in fact, were fixed for the evidence of the plaintiff petitioners so the cases were fixed for a hearing and the dismissal order was proper. The word "hearing" has not been defined anywhere in the Code. However, it has been interpreted to mean a date upon which either the evidence is recorded or the argument, are heard or any other step is taken by the Court towards further proceedings in the case. In the present cases the file was being summoned from the record‑office for the last about two years The plaintiff‑petitioners were appearing simply to know whether the file had been received or not. The office‑Qanungo was to be summoned for evidence after the file was received. The order rd. of dismissal of the suit does not show that the file was received even on that day. Even if the file had been received the Court was simply to ask the plaintiff'‑petitioners to produce the `office‑Qanungo on the next hearing. Thus, on that date the only action that the Court was to take was to see whether the file had been received or not and no pro ceedings of any character were to be taken in the suits. I am therefore, clearly of the view that the proceedings of that date did not amount to a hearing in the suits. Consequently the order of dismissal was without jurisdiction. Even on the second ground I am satisfied that the plaintiff‑petitioners had shown reasonable cause for their absence on the day the suits were dismissed. There is no reason to disbelieve the plaintiff‑petitioners' statement on oath as supported by Sher Muhammad. This evidence was absolutely unrebutted on behalf of the respondents.

5. In view of what has been stated above, I would order the restoration of the suits upon payment of Rs. 20 as costs in each case. The parties will bear their own costs in the restora tion proceedings in all the three Courts. The costs awarded to the respondents will be paid in the trial Court before the hearing of the cases starts.

6. Before parting with this judgment I would like to remark that the learned civil Judge was not right in making the plaintiff petitioners responsible for the production of the file from the record‑office. It was the duty of the learned civil Judge to see as to why his orders summoning the records were not being complied with for a period of almost two years. He should have asked the officer‑in‑charge record‑office to look into this matter or summoned him along with the file and in case he failed to appear, contempt proceedings should have been taken against him. K. B. A.