2004 PLP 769 (MLD)

Qazi Muhammad Tariq v. Hasin Taban and 3 others 1993 SCMR 1949 rel. Abdur Rashid Awan for Appellant. Tahir Mehmood Abbasi for Respondent. Date of hearing: 11th March, 2003. On 23‑2‑1998 the appellant filed a suit for recovery of Rs.22,085,340 against the respondent under Order XXXVII, C.P.C. The respondent was served and he put in appearance. On 23‑1‑1999 the presence of the learned counsel for the parties was recorded. It was noted that the application for leave to defend has been filed. The case was adjourned to 2‑3‑1999 for reply and arguments on the said application. On 2‑3‑1999 the case was called thrice and it appears that no one was present. However, it was particularly noted that no one is present for the plaintiff. After third call at 11.00 a.m., the suit was dismissed for non‑prosecution. On 28‑8‑2000 an application was filed for restoration of the suit. This was accompanied by an application under section 5 of the Limitation Act. It was contested by the respondent who filed a written reply. Vide order dated 31‑3‑2001 the learned Additional District Judge, Islamabad, found the application to be barred by time and dismissed the same.

2. Learned counsel for the appellant contends that since no one was present on the date fixed, and sufficient cause had been shown for absence of the appellant and learned counsel, the suit ought to have been restored as a large sum of money was involved. Learned counsel for the respondent supports the impugned order.

3. I have gone through the certified copies of the records, appended with this F.A.O., with the assistance of the learned counsel for the parties. I have already noted above that on 2‑3‑1999 the suit itself was neither fixed nor was called on for hearing. It was the said application for leave to defend that was fixed for reply and arguments on 23‑1‑1999. However, the learned trial Court did not pass any order in the said application. None was present and it proceeded to dismiss the suit itself in default. To my mind, the said order is void, ab initio and is wholly without jurisdiction. Under Order IX rule 8, C.P.C. an order can be passed for dismissal of the suit only when date on which the suit is called for hearing no one appeared for the plaintiff. In the present case it is apparent on the face of record that the suit was neither fixed for hearing nor was it called for hearing. No orders could thus have been passed under Order IX rule 8, C.P.C. with reference to the suit and learned trial Court did not even take up the application which was fixed on the said date and was called for hearing. I may here refer to the case of Qazi Muhammad Tariq v. Hasin Jahan and 3 others 1993 SCMR 1949 (wherein similar circumstances the dismissal of the suit was held to be without jurisdiction when only stay application was fixed for hearing). However, the fact remains that the appellant rather woke up late in the day in the matter of filing of application for restoration after several months. The application would not be time‑barred as the matter would be covered by section 151, C.P.C. However, the respondent does need to be compensated. The F.A.O. is accordingly allowed. The impugned order dated 31‑3‑2001 which again was passed by the learned Additional District Judge, Islamabad, without looking into the file of the case, as well as the order dated 2‑3‑1999 are set aside. The result would be that the suit filed by the appellant as also application filed by the respondent for grant of leave to appear and to defend the suit shall be deemed to be pending before the learned District Judge, Islamabad, where the parties shall appear on 15‑4‑2003. The appellant shall pay a sum of Rs.5000 to the counsel for the respondent by way of costs as condition of this order. Learned District Judge shall requisition the record and thereafter either proceed himself or entrust the suit to a learned Additional District Judge, who shall proceed from the stage at which the matter was on 2‑3‑1999. No order as to costs in this appeal. A copy of this judgment be immediately remitted to the learned District Judge, Islamabad. S.A.K./I‑247/L Appeal allowed.