2012 PLP 1786 (MLD)

QAISER RASHID KHAN, J.

Mst. Habiba Begum, petitioner/plaintiff, has filed this revision petition against the judgments and decrees dated 13/3/2007 and 14/11/2008 passed by the learned Civil Judge-VI, D.I. Khan and learned Additional District Judge-III, D.I. Khan respectively, whereby her application for restoration of the suit was dismissed.

2. Facts of the case in brief are that on 23-1-1994, the petitioner/plaintiff filed a suit for declaration-cum-perpetual injunction against Haji Iqbal-ud-Din, the predecessor-in-interest of respondents Nos. 1 to 5 which was ultimately dismissed in default on 17-9-1997 by the learned Civil Judge-II D.I.Khan. On 27-6-2000 the petitioner filed an application for restoration of the said suit along with an application for condonation of delay under section 5 of the Limitation Act to which the respondents filed replication and the case was fixed for recording pro and contra evidence but due to the absence of the petitioner/plaintiff, the application for restoration of the suit was also dismissed. The petitioner moved another application for restoration of the application for restoration of the suit on 19-1-2006, to which the defendants submitted reply and on 28-9-2006, the application dated 27-6-2000 was restored. After recording pro and contra evidence, it was dismissed through order dated 13-3-2007 which in appeal too, met the same fate vide order dated 14-11-2008 passed by the learned Additional District Judge-III D.I.Khan, hence this petition.

3. Learned counsel for the petitioner argued with great vehemence that both the learned courts below have failed to properly appreciate the materials brought on record and thus the impugned findings suffer from serious illegalities and irregularities. He argued that since the very order dated 17-9-1997 is void ab initio, therefore, no limitation runs against such an order. He contended that it has been the consistent view of the superior courts of the country that lis shall be decided on its own merits and technicalities should be avoided. He, therefore, urged that the petitioner having been non-suited merely on technical grounds, thus the impugned conclusions of both the courts below are bereft of reasoning resulting in serious miscarriage of justice which warrant to be set aside and the main case be decided on its own merits.

4. The respondents/defendants were not traceable on their given addresses and the petitioner was repeatedly directed to file their correct fresh addresses but he failed to do so. Thereafter, they were served through proclamation in the daily Mashriq Peshawar dated 14-8-2010, but none appeared on their behalf before the Additional Registrar of this court and they were placed ex parte vide order dated 31-8-2010.

5. I have carefully gone through the record of the case and considered the submissions of the learned counsel for the peti-tioner.

6. Perusal of the record reveals that the suit was instituted by the petitioner/plaintiff on 23-1-1994, whereafter the respondent/defendant was summoned and he accordingly filed his written statement and proceedings commenced therein. As per order Sheet No. 38 dated 22-4-1997, the parties attended the court and the case was adjourned for arguments on the application to 24-5-1997. As is evident from the order Sheet No. 39, on the said date as the counsel for the parties were busy before the other courts, therefore, the case was adjourned to 5-7-1997 for arguments. On the said date, as the learned Presiding Officer had gone to Peshawar High Court Peshawar, therefore, the case was adjourned through note of Reader to 17-9-1997.On the said date as the respondent/defendant, namely, Haji Iqbal-ud-Din was present with his counsel and none appeared on behalf of the petitioner/plaintiff, therefore, the suit was dismissed for non- prosecution.

7. Without adverting to the other facts of the case regarding the dismissal of the application for restoration of the suit etc; the two main legal questions which have cropped up before this court are (i) whether the date adjourned by the note of the Reader of the court can be termed as the date of hearing and (ii) whether the application filed by the petitioner/plaintiff for restoration of the suit was time barred? In this respect, it has been the consistent view of the superior courts that dismissal of suit in default of appearance on a date not given by the Presiding Officer but by the Reader of the Court could not be treated to be the date of hearing within the meaning of Order IX, Rule 8, C.P.C. More so, the period of limitation for application for restoration of the suit in such eventuality would be governed by Article 181 and not by Article 163 of the Limitation Act 1908. In the case in hand, after the dismissal of the suit of the petitioner/plaintiff for non-appearance on 17-9-1997, the application for restoration of the suit was filed on 27-6-2000 which was within the three years period prescribed under Article 181 of the Act ibid and thus could not be held to be barred by the law of limitation. Reliance in this respect may advantageously be placed on the case-law reported in 1983 SCMR 1092, 1995 SCMR 218, 2006 SCMR 789, PLD 1990 Karachi 227, PLD 1997 Peshawar 995, 2002 CLC 1272, 2003 YLR 1994 Peshawar, PLD 2004 Peshawar 38, 2005 CLC 333, 2007 YLR Peshawar 2188, and 2009 CLC 351 (Peshawar).

8. For the reasons stated above, this revision petition is accepted, the impugned judgments and decrees of both the learned lower courts are set aside, the suit of the petitioner/plaintiff is restored and the case is remanded to the learned trial Judge for decision afresh strictly on merits after affording full opportunity to the parties to produce evidence. The learned trial Judge is directed to procure the attendance of the parties, especially the defendants, by all possible means, before proceedings further in the case. KMZ/230/P Petition accepted.