1981L20 (PLP)

This civil revision is in respect of an order passed by the Senior Civil Judge, Sialkot. By that order he had refused to restore a suit of the petitioner, Muhammad Hanif, which had been dismissed in default. The said order of the learned Senior Civil Judge was also affirmed by the District Judge, Sialkot, while dismissing the petitioner's appeal against that order.

2. The petitioner's suit came up before the learned Senior Civil Judge on 15th April, 1978 when neither the petitioner nor his counsel was present. It was, therefore. dismissed for non-prosecution. Thereafter, on 3rd May, 1978, the petitioner filed an application for restoration of the suit which was opposed by the respondents, Province of the Punjab and another. These respondents were the defendants in the suit. The explanation furnished by the ,petitioner for his absence and that of his counsel from the Court on 15th April, 1978 was that he (petitioner) had asked counsel to take care of the suit as he had to do some other job but the counsei could not enter appearance when the case was called on because he (counsel) was then busy before another Court: It was noted by the learned Senior Civil Judge that there was no affidavit by the petitioner's counsel in support of the plea raised by the petitioner. It was also observed by him that the making of the application by the petitioner for restoration of the suit after 18 days of its dismissal was indicative of the fact that he was not serious in pursuing his case. The learned Senior Civil Judge, therefore, declined to restore the suit.

3. Learned counsel for the petitioner contended that the date on which the suit was dismissed in default was not the date fixed for its hearing and, there fore, the dismissal of the suit was void ab initio and a nullity. It was pointed out by him that on 15th March 1978 the case was adjourned to 15th April 1978, the date when it was dismissed for non-prosecution, and that while so adjourning the case it was directed by the learned Senior Civi Judge that summons shall issue to defendant No. 1 for 15th April 1978. It was conceded by the learned counsel for the petitioner that when suit was registered the learned Senior Civil Judge had ordered issuance of summonses to the defendants for settlement of issues . Thus, the summons mentioned in the order, dated the 15th March 1978, was of the same category which was referred to in the order by which the case had been 'registered by the learned trial Court. .In view of the provisions of Order IX, rule 1 of the Code of Civil Procedure, the date fixed for framing of issues in a suit is a date of its hearing. The case reported as Sheikh Abdul Haque v. Syed Muhammad Anwar (P L D 1979 Lab. 332), is an authority in point. In this connection reference can also be made, with advantage, to the provisions of Order X, rule 1, of the Code of Civil Procedure relating to the first hearing of the suit which, according to Chidambaram Chettiar v. Parvathi Achi (A I R 1926 Mad. 347), is the date on which issues are framed. Learned counsel for the petitioner did not cite any authority to the contrary. 1, therefore, entertain no manner of doubt that 15th April 1978, on which date they suit of the petitioner was dismissed in default, was a date of hearing of the suit and, therefore, it could be dismissed clue to the absence of the petitioner and his counsel.

4. It was further submitted by the learned counsel that the suit was dismissed in the early hours of the day in contravention of the instructions contained in paragraph 6 of Part J of Chapter 1 of the High Court Rules and Orders. Volume

1. It was also pointed out by him that the time of the dismissal of the suit had not been noted by the learned Senior Civil Judge. It is true that the relevant order does not mention the time when the suit was dismissed in default but this would not make the order illegal because what is contained in paragraph 6 is a departmental instruc tion and not a provision of law. The failure of the learned Civil Judge to comply with the said instruction has exposed him to departmental action but would not invalidate the order of dismissal made, by him. Paragraph 6 also enjoins upon the subordinate Courts not to dismiss the cases in default hastily in the early part of the day, but in the petitioner's application for restoration of the suit there is no plea to the effect that the suit was dismissed in the early hours of the day. There is also no affidavit in this behalf. The said plea was not raised before the learned- District Judge either. I am, therefore, unable to agree with the learned counsel for the petitioner that the suit was dismissed in the early part of the day.

5. The petitioner bad, on his own showing, gone to the Court premises on- the date of the dismissal of his suit to tell his counsel to take care of his suit as he (petitioner) had to attend to some other business. The nature of the other business has not been spelt out so as to enable this Court to appreciate that it was so urgent as to justify his absence from the Court. His vague assertion that he had to attend to another piece of work is, therefore, of not much help to him. As for the absence of his counsel, there is no affidavit by the counsel or his Clerk that he (counsel) was actually busy before some other Court when the case was called on. Even the name of the other Court has not been indicated in the application. The order passed by the learned Senior Civil Judge dismissing the application for restoration of the suit, therefore, does not call for any interference.

6. Accordingly, the petition fails and is dismissed in limine. M. A, K. Petition dismissed.