2017 PLP 410 (YLRN)

CH. MUHAMMAD IBRAHIM ZIA, J.

This appeal by leave of the Court is addressed against the judgment of the High Court dated 14.6.2013 whereby while accepting the writ petition filed by respondent No.1, order passed by District Judge, Bhimber dated 24.1.2012 has been set-aside and the order of the trial Court dated 30.11.2011 has been restored. The necessary facts precisely stated are that the plaintiff-respondent filed a suit against the defendant-appellant and another in the Court of Civil Judge, Samahni. After framing issues, the defendant-appellant was directed to produce evidence vide order dated 9.2.2007. On 18.6.2007, the trial Court recorded the statements of two witnesses produced by the defendant-appellants and it was ordered by the trial Court that entire evidence be produced. On 24.11.2008, the trial Court recorded that since the defendant-appellant has to produce a verification to the effect that revision petition before the High Court has been filed, therefore, the file shall be submitted on requisition and placed before the Court on 24.12.2008 for proper orders. The file remained pending for production of stay order till 24.12.2010 and then it was fixed for 26.1.2011. On 26.1.2011 the counsel for the defendant-appellant appeared whereas no one on behalf of plaintiff-respondent appeared in the Court. The trial Court dismissed the suit of the plaintiff-respondent vide order dated 26.1.2011. 3(sic). The plaintiff-respondent moved an application for restoration of the suit on 7.9.2011 before the trial Court which was restored on 30.11.2011. A revision petition filed by the defendant-appellant before District Judge was allowed vide order dated 24.1.2012. The plaintiff-respondent challenged the order passed by the District Judge, dated 24.1.2012 through a writ petition before the High Court on numerous grounds. The writ petition resisted by other side. The High Court, after necessary proceedings disposed off the same in the manner indicated in para 1 hereinabove. The defendant-appellant feeling aggrieved from the judgment of High Court has filed the instant appeal.

4. Raja Khalid Mehmood, Advocate, the learned counsel for the appellant, after detailed discussion of facts submitted that learned single Judge of the High Court has failed to apply judicial mind and dive deep into facts of the case. Thus, the delivery of the impugned judgment resulted into miscarriage of justice. He submitted that the respondent's application for restoration of the suit was hopelessly time barred and also lacking the sufficient reason. Whereas according to statutory provision, for restoration of the suit, filing of application within prescribed limitation is necessary. Same like, it is heavy duty on the applicant to satisfy the Court that there is sufficient reason. In the instant case, both these legal statutory ingredients were lacking, thus, the learned District Judge has passed a lawful order. The learned District Judge, categorically after due application of mind and by applying correct statutory provisions of the Limitation Act has declared the application as time barred. Same like, the learned District Judge also correctly observed that no sufficient cause was shown. He further submitted that the District Judge exercised the revisional powers vested in him under the statute. Therefore, in such state of affairs, there was no occasion to set at naught such order which is passed by competent Court while exercising the writ jurisdiction. The learned single Judge of the High Court has traveled beyond the constitutional jurisdiction while granting writ in this case. Therefore, the impugned judgment of the High Court is not sustainable. Thus, while accepting this appeal, the impugned judgment may kindly be set-aside. Consequently, the order passed by the learned District Judge be restored.

5. Conversely, Ch. Muhammad Suleman, Advocate, the learned counsel representing the respondents forcefully defended the impugned judgment and submitted that admittedly, during pendency of the revision petition in relation to some interlocutory orders, the matter remained subjudice before the trial Court. The suit was not fixed for hearing, hence, dismissal of same for non-prosecution on 26.1.2011 was uncalled for and against law. The plaintiff-respondent applied for restoration of suit within prescribed period while stating sufficient cause i.e. the pendency of the matter before the High Court. The application was duly supported by affidavit. The trial Court restored the suit according to law whereas the order of learned District Judge in revision was totally against settled principles of law as well as statutory provisions. Thus, the impugned judgment of the High Court is consistent with the principle of law and justice and the appeal has no merits, hence, the same be dismissed with costs.

6. We have heard the learned counsel for the parties and also examined the record. The examination of the High Court's writ file reveals that the respondent has appended with the writ petition the certified copies of the interim orders of trial Court from 28.2.2007 till 26.1.2011. According to the interim order of trial Court dated 26.11.2008, the appellant herein produced a certificate regarding the file of revision petition. The trial Court directed the office that in case of summoning record, file shall be sent to High Court. The examination of the interim orders recorded thereafter shows that the dates had been fixed for proper orders till 30th January, 2010. On 8th March, 2010, the Court ordered that on the next date suspension order must be produced. On 30th March, 2010, it is recorded that the counsel for the defendant (appellant herein), has produced the copy of writ petition and he was directed to produce suspension order. On 29th May, 2010, it is recorded that counsel for the defendant-appellant herein wants time to produce the suspension order. Thereafter on some other date, the appellant's counsel requested for grant of time to produce suspension order on 24.12.2010. It will be useful to reproduce here the order dated 24.12.2010, which reads as following:- Thereafter, the order for dismissal of suit was passed.

7. A perusal of the order of trial Court dated 24.12.2010 clearly speaks that the suit was fixed for proper orders. Even otherwise, time was granted to the defendant-appellant to produce the suspension order. Thus, it is clear that the date of dismissal of suit for non-prosecution i.e. 21.1.2011 was not the date of hearing. If for the sake of arguments, it is presumed that it was the date of hearing, even then, the plaintiff-respondent was not under the obligation to perform any act rather it was enjoined upon the defendant-appellant to produce the suspension order. In this state of affairs, dismissal of the suit was unwarranted which was rightly restored by the trial Court. The order passed by the learned District Judge Bhimber in revision petition is not consistent with the statutory provision as well as principle of law. The learned District Judge while passing the order has also not applied the correct law, thus, the High Court has rightly exercised the writ jurisdiction and applied the correct law.

8. A suit can be dismissed for non-appearance of the plaintiff under the provision of Order IX, rule 8 of the Civil Procedure Code, if the date was fixed for hearing. According to the peculiar facts of this case in the light of interim order of the trial Court referred to and discussed hereinabove, it is clear that the date was not fixed for hearing. If the date is not fixed for hearing, neither the suit can be dismissed nor ex-parte order can be recorded. If any such order is recorded it will be deemed as without jurisdiction and nullity in the eye of law. This Court in the case reported as Habib Bank Ltd. v. Kh. Muhammad Ishaque, [PLD 1983 SC (AJ&K) 223] has elaborately defined the term "hearing" and in case the date was not fixed for hearing, any order for dismissal of suit or ex-parte order was declared as without jurisdiction. The conclusion of the report is " held that the ex-parte order dismissing the suit was without jurisdiction since there was no hearing of the suit on the date when default of appearance was made".

9. In another case reported as Messrs Fateh Textile Mills Ltd. v. West Pakistan Industrial Development Corporation [PLD 2008 Karachi 103], it is held that even the Court can restore the suit under the powers vested in it under section 151, Civil Procedure Code. In another case reported as Nazar Muhammad v. Muhammad Anwar [1999 YLR 2464], the Lahore High Court has also reiterated the view laid down by this Court in the Habib Bank's case [PLD 1983 SC (AJ&K) 223], referred to hereinabove. The apex Court of Pakistan in a case reported as Hashim Khan v. National Bank of Pakistan [1992 SCMR 707], held that if the date was not fixed for hearing of the suit, on such date ex-parte order is deemed as illegality and the same can be set at naught under the provision of section 151, C.P.C. The Peshawar High Court in a case reported as Sanaullah Khan and 3 others v. Additional District Judge-V Bannu and 15 others [2009 CLC 351], held that if a suit is dismissed for non prosecution when the date was not fixed for hearing, limitation will be governed under Article 181 and not 163 of the Limitation Act. Relevant para-6 of the judgment reads as follows:- "

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 this 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 on 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." Thus, in view of the survey of case law, the impugned judgment is quite consistent with the principle of law and justice which does not call for interference, therefore, the appeal stands dismissed with costs. ZC/88/SC(AJ&K) Appeal dismissed.