P L D 2019 Balochistan 106
Before Roze Khan Barrech, J
MUHAMMAD HUSSAIN and 17 others---Petitioners
Versus
ABDUL HAMEED and 4 others---Respondents
Civil Revision No.48 of 2017, decided on 10th July, 2019.
(a) Civil Procedure Code (V of 1908)---
----O. IX, R. 8---"Date of hearing"---Date given by reader--- Scope--- Dismissal of suit in default for
non-appearance on date, not given by Presiding Officer but by Reader of the court cannot be treated to be
a "date of hearing" within meaning of O. IX, R. 8, C.P.C.
(b) Specific Relief Act (I of 1877)---
----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.IX, R. 8 & O.XVII, R. 3---Limitation Act (IX of
1908), Arts. 163 & 181---Restoration of suit---Limitation---Suit dismissed for non-appearance--- Final
arguments---Suit filed by plaintiffs was dismissed for non-prosecution when it was fixed for final
arguments---Validity---Case was fixed for final arguments and entire evidence of parties was recorded
and case was ripe for judgment---When Trial Court itself fixed case for hearing then it could have taken
action under O.XVII, R.3, C.P.C. and should not have dismissed suit under O. IX, R. 8, C.P.C.---
Dismissal of suit for non-appearance at such stage was wholly not warranted and entire labour and
expense could not be allowed to go to waste---High Court observed that only proper course in such
circumstances was to fix another date for hearing final arguments or decide suit on merits on basis of
available evidence produced by both the parties without hearing arguments---High Court set aside order
passed by Trial Court and Lower Appellate Court and restored suit filed by plaintiffs---High Court
remanded suit to Trial Court for decision afresh---Revision was allowed accordingly.
Muhammad Gauhar for Petitioner.
Shai Haq Baloch, A.A.G. for the State.
Date of hearing: 25th June, 2019.
JUDGMENT
ROZI KHAN BARRECH, J.--- This Civil Revision Petition has been filed under Section 115 C.P.C.
against the orders dated 05.11.2015, 25.10.2016 passed by learned Qazi Lasbela at Uthal ("trial court")
and order dated 02.02.2017 passed by learned Majlis-e-Shoora Lasbela ("appellate court"), whereby the
application filed by the petitioners for restoration of the suit was dismissed.
2. Facts of the .:ase in brief are that on 15.01.2014 the petitioners filed a suit for declaration, perpetual
injunction and correction of mutation entries against the respondents which was ultimately dismissed in
default on 11.09.2015 by the trial court. On 01.10.2015 the petitioners filed an app1ication for restoration
of the said suit but the same was also dismissed vide impugned order dated 5-11-2015. The petitioner
filed another application under section 151, C.P.C. before the trial Court on 17-5-2017 and the same was
dismissed on 25.10.2016. The petitioners being aggrieved from the orders dated 25.10.2016 and
5.11.2015 filed an appeal under Order XLIII, Rule 3, C.P.C. before the appellate court, which too was
dismisscd on 02.02.2017. Hence, this petition.
3. Learned counsel for the petitioners argued with great vehemence that both the courts below have
failed to properly appreciate the material brought on record thus the impugned findings suffer from
serious illegalities and irregularities. He contended that since the very order dated 05.11.2015 is void ab
initio, therefore no limitation runs against such an order. He further urged that the petitioners havingP L D 2019 Balochistan 106 https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2019Q18
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been non-suited merely on technical grounds despite the fact that the main case was fixed for final
arguments, thus, the impugned conclusions of both the courts below are bereft of reasoning resulting in
serious miscarriage of justice, which are liable to be set aside and the main case is to be decided on its
own merits.
4. The respondents Nos. 1 to 4 were not traceable at their given address and the notices were
repeatedly received unserved, therefore, they were served through publication in Daily Jang dated 14th
June, 2019, but none appeared on their behalf before the court, thus they were proceeded against ex-parte
vide order dated 24.06.2019 passed by this court.
5. The learned AAG appeared on behalf of official respondent No.5 and supported the contentions so
raised on behalf of the petitioners.
6. Perusal of the record reveals that after conclusion of the trial, the case was fixed for final arguments
on 03.09.2015 as per order sheets maintained by the trial court. On the said date, attorney for the
petitioners along with counsel Mr. Shehbaz, Advocate appeared before the court, but the learned
Presiding Officer was on leave, therefore the case was adjourned through note of the reader of the court
for 11.09.2015. On the said date counsel for respondents was present, but none appeared on behalf of the
petitioners, therefore the suit was dismissed for non-prosecution. Without adverting to the other facts of
the case, regarding dismissal of the application for restoration of the suit, three main questions have
cropped up before this court, which are (i) whether the case adjourned by note of the Reader of the court
can be termed as a date of hearing (ii) whether the suit can be dismissed in default when the same was
fixed for final arguments and (iii) whether the application filed by the petitioners for restoration of the
suit was barred by time?. In this respect it has been consistent view of the superior courts that dismissal
of the suit in default for non-appearance on the date, not given by the Presiding Officer but by the Reader
of the court could not be treated to be a date of hearing within the meaning of Order IX, Rule 8, C.P.C.
To my mind, the said order is void ab-initio and without jurisdiction. Moreover, the period of limitation
for application for restoration of the suit in such eventuality is governed by Article 181 and not by
Article 163 of the Limitation Act, 1908. After dismissal of the application for restoration of the petition
on 05.11.2015 the petitioner filed another application under Section 151 C.P.C. on 17.05.2016 for
restoration of the suit which was within three years' period prescribed under Article 181 of the ibid Act
thus, the same could not be held as barred by the law of limitation.
7. It is stated that the case was fixed for final arguments and the entire evidence of the parties has been
recorded. Thus, the case was ripe for judgment. For the sake of arguments if it is presumed that when the
trial court itself fixed the case for hearing, then it could have taken action under Order XVII, Rule 3
C.P.C. and should not have dismissed the case under Order IX, Rule 8, C.P.C. Reliance in this behalf is
placed on the case titled as (PLD 1960 (W.P.) Lahour 129). Indeed dismissal of the suit for non-
appearance at such a stage was held wholly not warranted and the entire labor and expense of many years
could not be allowed to go waste. The only proper course in such circumstances was either to fix another
date for hearing of final arguments or to decide the suit on merits on the basis of available evidence
produced by both the parties without hearing the arguments.
For the reasons stated herein above, the petition is accepted. The impugned orders of both the courts
below are set aside and while restoring the suit the case is remanded to the trial court for decision afresh
strictly on merits after affording full opportunity to the parties. The trial court is directed to procure the
attendance of the parties, specially defendants by all possible means before proceeding further in the
case.
Petition is accordingly accepted, with no order as to costs.
MH/56/Bal. Case remanded.
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