2023 C L C 557
[Balochistan (Sibi Bench)]
Before Muhammad Ejaz Swati and Zaheer- ud-Din Kakar, JJ
SAWAB DIN and others ----Petitioners
Versus
CIVIL JUDGE DERA BUGTI AT SUI and others ----Respondents
Constitution Petition No.(S)34 of 2019, decided on 3rd November, 2021.
Civil Procedure Code (V of 1908) ---
----O.IX, R. 8 ---Procedure where defendant only appears ---Scope ---Date of hearing is a date
on which court examines pleadings in order to comprehend pleadings of the parties or in a
suit in which issues are to be framed---Such is not a date fixed merely for appearance of parties, or for filing written statement or replication or scrutiny of process ---If there is a date
fixed in a suit which is not "hearing" the plaintiff cannot be penalized for his absence on that date.
2016 SCMR 2009; 1992 SCMR 707; Manager, Jammu and Kashmir, State Property in
Pakistan v. Khuda Yar and another PLD 1975 SC 678; PLD 1991 SC 1104; Qaim Ali Khan
v. Muhammad Siddique 1987 SCMR 733; 1990 CLC 1261; PLD 1971 Lah. 412; PLD 1954 Lah. 575 and PLD 1982 Kar. 355 ref.
Qaim Ali Khan v. Muhammad Siddique 1987 SCMR 733; Sher Muhammad and
another v. Ahmed Khan and another 2004 CLC 1016; Abid Mahmood v. Abdul Aziz 2003 YLR 3196 and Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 rel.
Husnain Iqbal Minhas for Petitioner.
Anwar -ul-Haq Chaudhary for Private Respondents.
Naseer -ud-Din Mengal, A.A.G. for Official Respondents.
Date of hearing: 29th October, 2021.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ----The petitioner (plaintiff) filed a suit for
declaration, cancellation of mutation No.120 and permanent injunction, in respect of property described in the plaint, against respondents/defendants. It was claim of the petitioners that
they are owner/in possession of the subject property and came to know that respondent had
fraudulently got transferred the property on their name with connivance of the official respondents.
2. The trial court vide impugned order dated 2- 6-2018, dismissed the suit in default, due
to nonappearance of the petitioners. The application for restoration of suit filed by the petitioners on 30- 6-2018, was dismissed by the trial court, vide impugned order dated 12- 12-
2018. On civil revision petition filed by the petitioners was also dismissed by the Additional District Judge Dera Bugti at Sui, vide impugned order dated 4- 3-2019.
3. Heard the learned counsel for the parties and perused the record. It appeared that in
response to summon respondents appeared before the trial court on 17- 5-2018, the trial court
passed order as under
4. From the above it appears that the case was fixed on 17- 5-2018 for appearance of
parties and on serving of summons, respondents appeared, thereafter case was adjourned for 2-6-2018 for filing written statement by the respondents, when due to non- appearance of
petitioners, suit was dismissed in default under Order IX, Rule 8 Civil Procedure Code (C.P.C) by trial court. The legal aspect of the matter is to consider is, whether a date which was fixed for filing of written statement was date of "hearing" within meaning of Order IX,
Rule 8, C.P.C.?
5. The date of hearing is date on which court examines pleadings in order to comprehend
pleadings of the parties or in a suit in which issues are to be framed. It is not a date fixed merely for appearance of parties, or for filing written statement or replication or scrutiny of process. The Honorable Supreme of Pakistan in case titled Qaim Ali Khan v. Muhammad Siddique (1987 SCMR 733) observed that "if there is a date fixed in a suit which is not its "hearing", the plaintiff cannot be penalized for his absence on that date. In case titled Sher Muhammad and another v. Ahmed Khan and another (2004 CLC 1016) it was held that 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 and not the consideration of interlocutory matters. In case titled Abid Mahmood versus Abdul Aziz (2003 YLR 3196) that under Order IX, Rules 3, 6, 8, Order XV, Rule 1 and Order XVII, Rules 2, 3 of C.P.C. date of "hearing" includes investigation of controversy, hearing of arguments, framing of issues or taking evidence etc and not any interlocutory matter.
6. In case titled Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar
and another (PLD 1975 SC 678) it was observed as under,
"The first question to be considered is as to what precisely is meant by the expression "called on for hearing" in the context in which it is used in Order XLI, Rule 17. It
may be recalled that on the basis of a large number of authorities mentioned earlier,
learned counsel for the appellant had contended before us that the word "hearing" as used in this context meant "an effective hearing" when anything germane to the appeal would be done or had to be done. The expression as used in Order IX, Rule 8 and Order XVII, Rule 2 was interpreted in Sheikh Abdul Rahman v. Shib Lal Sahu
and others. It was observed as follows: -
"The word 'hearing' has not been defined in the Code but it is obvious that it is used in
different rules with a view to state the different purposes for which a date for hearing
of the suit is, fixed. Now in Order IX, Rule 1, read with Rule 3, it would appear that after the institution of the suit when the summons is issued upon the defendants calling upon them to appear upon a particular date and that date is the first hearing of the suit and if the parties fail to appear when the suit is called on for hearing on that date the plaintiff's suit is dismissed for default. Various steps have to be taken by the parties in a suit in order that it may be ready for final hearing which means the examination of witnesses, the tendering of documents, and the hearing of arguments. At the intermediate stage in order to enable or compel the parties to take necessary steps in the prosecution of the case the Court may fix dates for some particular action to be taken. These dates are dates for hearing of that particular matter which is specified in the order of the Court."
7. In the following cases, it was observed that date of "hearing" is not a date fixed
merely for appearance of the parties or for filing written statement, or replication or for scrutiny of process or on which no investigation of any matter germane to the progress of the suit is to be performed by the court and which is only fixed for merely an order of an administrative nature is not a date of hearing (2016 SCMR 2009) (1992 SCMR 707) (PLD
1975 SC 678) (PLD 1991 SC 1104) (1987 SCMR 733) (1990 CLC 1261) (PLD 1971 Lahore 412) (PLD 1954 Lahore 575) (PLD 1982 Karachi 355).
8. In the light of the above, it is settled principle of law that if there is a date fixed in a
suit which is not "hearing" the plaintiff cannot be penalized for his absence on that date.
9. In the instant case, after issuance of summons, some of the respondents appeared on
17-5-2018 and thereafter case was adjourned for 2- 6-2018 for filing written statement by the
respondents and said date could be construe a date of "hearing", thus, the impugned orders cannot be sustained.
In view of above, C.P. No(S).34 of 2019 is allowed. The impugned orders dated 2- 6-
2018 and 4- 3-2019 passed by Civil Judge, Dera Bugti at Sui and Additional District Judge
Dera Gugti at Sui respectively are set aside and the case is remanded to the trial court to proceed with the matter in accordance with law.
SA/35/Bal. Petition
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