2004 PLP 1016 (CLC)

Jan Muhammad Khan for Respondents. Date of hearing: 17th June, 2003. Umar Said predecessor of the respondents filed suit against Ajdar predecessor of the petitioners, in the Court of learned E.A.C. Sheringal with powers of Deputy Commissioner seeking declaration, perpetual injunction and possession of the property more particularly described in the heading of the plaint. The said suit was resisted by the predecessor of the petitioners by filing written statement. The said suit with the amendment in law was transferred to the Court of learned Civil Judge/Illaqa Qazi, Dir. The case file was received by the learned trial court on 22-2-1995. Due to absence of the plaintiff (Umar Said) the suit was dismissed for non-prosecution vide order, dated 25-6-1995. Petitioner filed application for restoration of the suit on 4-7-1998. The learned trial Court after recording evidence of the parties dismissed the application vide judgment/order dated 20-4-2000. Feeling aggrieved with the said judgment/order, the respondents filed appeals Nos.45/14 in the Court of learned District Judge/Zila Qazi, Dir Bala. The said appeal was allowed, the judgment/order passed by the trial Court was set aside, the application for restoration of suit was allowed on payment of Rs.2,000 as costs and the case was remanded back to the learned trial Court for deciding the suit on merits vide judgment and decree, dated 15-10-2002. Being not contented with the judgment and decree of the learned Appellate Court, the petitioners have filed the revision petition in hand.

2. Qazi Zakiuddin, the learned counsel representing the petitioners, argued that the suit filed by Umar Said was dismissed for non prosecution on 25-6-1995. The application for restoration of the same was filed after more than three years on 4-7-1997 which was hopelessly barred by time. Under Article 163 of the Limitation Act, the application should have been filed within thirty days from the date of dismissal of the suit but the learned Appellate Court failed to appreciate the same.

3. It was also argued that the respondents had the knowledge of dismissal of the suit but they did not move in time to file application for restoration of the suit.

4. On the other hand, Mr. Jan Muhammad Khan, the learned counsel representing the respondents, argued that the suit with the amendment in law was transferred from the Court of E.A.C. to the learned Civil Judge/Illaqa Qazi but no notice of the said transfer order was given to the predecessor of the respondents, therefore, his absence on 25-6-1995 was not intentional. The learned Appellate Court has rightly appreciated the same and that has properly exercised the discretion in favour of the respondents which needs no interference.

5. It was also argued that the predecessor of the respondents was constantly ill and eventually died in the year 1997. The respondents had no knowledge of the dismissal of suit filed by Umar Said their predecessor. Having come to know about the dismissal of suit, they filed application for restoration of suit which was within time from the date of knowledge.

6. I have heard the learned counsel for the parties and perused the record.

7. The perusal of the case file shows that the learned E.A.C. Sheringal vide order, dated 8-1-995 sent the case file to the Court of learned Civil Judge/Illaqa Qazi, Dir which was received by the said Court on 22-2-1995. Notice to the defendant was issued form the' said Court for 22-3-1995 but none appeared. The case file was again sent to the learned District Judge/Zilla Qazi vide order, dated 22-3-1995. The same was then received back by the learned trial Court vide order, dated 3-4-1995. The learned trial Court on 27-4-1995 again issued summons to the parties for 24-5-1995 on which date the plaintiff was not present, however, the defendant put appearance through his attorney. Notice was again issued in the name of plaintiff for 4-6-1995 on which date the learned Presiding Officer went to Samar Bagh to record his statement hence the date was changed due to note of Reader in which as a routine matter it was mentioned that the parties were present and case was posted for 14-6-1995 on which date the plaintiff was absent. Similar was the position on 25-6-1995 when the suit filed by the plaintiff was dismissed.

8. The perusal of the order-sheets show that the predecessor of the respondents was not served after the case was transferred to the Court of Civil Judge/Illaqa Qazi, therefore, the question of his appearance before the Court did not arise. Even if the deceased plaintiff had been served and was absent on the date for which he was summoned, the question arises as to whether the said date would be called "hearing". The answer to this question is in negative. The word "hearing" means the taking of evidence or hearing of arguments or the consideration of question relating to the suit which would enable the Court to finally come to an adjudication upon it and not the consideration of interlocutory matters. When the case was received on transfer from another Court and fixed for determining the future conduct of the suit, notice was issued for "appearance" and not for "hearing". After holding the service of notice to be proper, the Court was required to fix the case of hearing and the suit could not be dismissed for non-appearance of the plaintiff on the date when the same was fixed for appearance only. The learned trial Court without appreciating that the deceased plaintiff (Umar Said) had not been served after the suit was transferred from the Court of learned district Judge/Zilla Qazi and received by the trial Court. A dismissed the same vide order, dated 25-6-1995. The said order on the face of it was illegal. The learned Appellate Court has appreciated the same properly.

9. I have not been able to find out any illegality or material irregularity or any jurisdictional error/defect warranting interference in the impugned judgment and decree passed by the learned Appellate Court. Resultantly, the revision petition in hand is dismissed with no order as to costs. H.B.T./80/P Petition dismissed.