P L D 1976 Quetta 42 (PLP)

This revision application under section 1.15 of the Code of Civil Procedure arises from the order of the District Judge, Quetta, dated the 16th June 1975, whereby he dismissed the application to review the order dated the 4th February 1975, passed by him dismissing the suit of the applicant‑plaintiff in default of appearance.

2. The suit was fixed for final hearing on the 27th November 1974. On this date the learned District Judge was on leave, and therefore, his Reader adjourned the hearing to the 4th February 1975. However, on this date the applicant‑plaintiff and his counsel were absent and, therefore, the suit was dismissed in default of appearance. The applicant therefore, made an application under Order IX, rule 9, C. P. C. for restoration of the suit, but the application was dismissed an the ground that it was barred by time. The applicant, thereafter moved another application under Order XLVII, rule

1. C. P. C. for reviewing the order dismissing the application for restoration of the suit, inter alia, on the ground that on 27th November 1974, when the suit was adjourned to 4th February 1975, the Reader of the Court was not authorised to give a date and that he also did not give a slip of paper specifying the other date fixed for proceeding with the suit required to be given by him to the applicant under the provisions of Order XVII, rule 5, C. P. C. as amended by the Law Reforms Ordinance, 1972 (Ordinance XVII of 1972). The learned District Judge by his order dated the 16th June 1975, dismissed this application also. observing that "I see no merits in this contention". The contention raised before him, to quote his words, was :‑ "The contention of the learned counsel for the plaintiff applicant is that as the Presiding Officer was not present therefore it was incumbent upon the Reader to issue chit to the plaintiff intimating him the next date of hearing. He has further contended that this chit could only be issued if the reader has been specifically authorised by the Court. As neither there is an authority nor any chit was issued therefore the applicant cannot be punished for his absence. I see no merits in this contention." The learned District Judge has not stated any reason why he saw no merits in the contention and as such he acted in the exercise of jurisdiction illegally and with material irregularity. It is well established that if a Court acts arbitrarily or capriciously in determining a matter or in deciding a case without giving reasons in the judgment in support of the conclusion arrived at, then it acts in the exercise of its jurisdiction illegally and with material irregularity and such a decision is open to revision. In the instant case the learned District Judge has decided a very crucial point which determined the fate of the case without giving any reasons for such determination and as such he acted in the exercise of jurisdiction with material irregularity or illegally and therefore his decision is open to revision by this Court. I would have remanded the case to the learned District Judge for passing an order in accordance with law but I cannot do so as it is stated that he is no more posted there. On the merits of the case I cannot presume that the contention that the Reader was not authorised by the learned District Judge to give next date was not factually correct, for, if it was otherwise the learned District Judge would have easily said so. I, therefore, presume that by the observation I see no merits in this contention" he meant that it was not legally correct. But the provisions of Order XVII, rule 5, are in mandatory terms. If the law requires that a particular thing should be done in a particular manner the provisions must be duly complied with and failure to do so may render the proceedings invalid. In Nazir Ahmed v. King‑Emperor (A I R 1936 P C 253) it was held that "the rule which applied is that where a power is given to do a certain thing a certain way the thing must be done in that way or not at all. In Meansab Ali v. Amir (P L D 1971 S C 124) their Lordships of the Supreme Court of Pakistan observed "It is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from illegality and are without jurisdiction". In such an event the question of limitation does not arise. In any case, the application should have been treated as one under section 151, C. P. C. and the period for making such an application is three years from the date of order as provided in Article 181 of the Limitation Act and, therefore, the application made by the applicant for restoration of the suit dismissed on the 4th February 1975; was not barred by time. Moreover, law favours adjudication on merits for a failure to so adjudicate, means a refusal to the parties of their rights and an adjudication will not be refused unless there exists some insuperable practical obstacle preventing it as was observed by his Lordship Kaikaus, J., in Wall v. Manak Ali (P L D 1965 S C 651). I, therefore, accept the revision application and set aside the order of dismissal of the suit and restore the suit. Since the applicant did not initially plead his case properly before the District Judge and had to make a review application I direct him to pay Rs. 200 as cost to the respondents on account of fee of their Advocates. S. A. H. Revision accepted.