P L D 2026 Balochistan 43
Before Iqbal Ahmed Kasi and Muhammad Najam ud Din Mengal, JJ
ABDUL HAYEE ---Petitioner Versus
MUHAMMAD YOUSAF and 3 others ---Respondents
C.P. No. 1252 of 2023, decided on 15th October, 2025.
(a) Civil Procedure Code (V of 1908) ---
----O.IX, Rr.8 & 9 ---Limitation Act (IX of 1908), S.5--- Civil suit fixed for passing of
order on interlocutory application ---Suit dismissed for non -appearance of plaintiff ---
Legality ---Whether the entire suit could be dismissed in circumstances ---Date of
“hearing”, meaning of ---Petitioner filed a civil suit for declaration and specific
performance regarding a registered sale deed along with correction/transfer of mutation
and permanent injunction; suit was dismissed for non -appearance under O.IX R.8, C.P.C.;
the petitioner’s application for restoration under O.IX R.9, C.P.C. (with S.5 Limitation Act) was allowed and the suit was restored; the respondents filed revision petition against restoration order, whereby restoration order was set aside, leading to the filing of the present constitutional petition ---Held: The case was not fixed for hearing of the main suit
rather for passing of an order on a miscellaneous application under O.XXXIX Rr.1 and 2 C.P.C. ---Trial Court while dismissing the entire suit due to non -appearance of the
plaintiff clearly exceeded its jurisdiction ---Proceedings under O.XXXIX, Rr. 1 and 2
C.P.C. were of an interlocutory nature ---Dismissal of such application or non -appearance
of a party thereon could not entail dismissal of the main suit unless specifically fixed for
hearing ---Order dismissing the entire suit was illegal--- As regards the question of
limitation for filing application for restoration of the suit, even if the same was filed after
some delay, it was rightly considered and allowed by the trial court after condoning delay as limitation did not run against the void order.
Mst. Surya Parveen v. Mst. Rukhsana Hanif and others 2012 SCMR 656 rel.
Sabir Hussain v. Azra Begum and 5 others 2017 YLR Note 410 ref.
(b) Civil Procedure Code (V of 1908) ---
----O.IX, Rr.6 & 7 ---Suit fixed for order on miscellaneous or interlocutory matter ---Suit
not fixed for “hearing” ---Court passing ex -parte order ---Legality ---Date of “hearing”,
meaning of ---Legal import of the term “hearing” relates to the stage of proceedings where
the court examines the evidence or considers the substantial questions involved in the suit, enabling it to arrive at a final adjudication ---It does not encompass the consideration
of an interlocutory or miscellaneous matter ---When the date is not fixed for hearing a
suit, rather the same was fixed merely for consideration of an interim or interlocutory application, the passing of any ex -parte order on such a date would be without
jurisdiction, and such an order, being coram non judice, would be nullity in the eyes of law.
Habib Bank Ltd v. Kh. Muhammad Ishaque PLD 1983 SC (AJ&K) 223 rel.
(c) Limitation ---
----Void order ---Limitation does not run against a void order because an order that has no
legal existence cannot trigger the period of limitation.
Asadullah Baloch and Siraj Ahmed for Petitioner.
Asif Iqbal Lehri for Private Respondents.
Changez Dashti, Assistant Advocate General for Official Respondents.
Date of hearing: 6th October, 2025.
JUDGMENT
MUHAMMAD NAJAM -UD-DIN MENGAL, J. ---The instant Constitutional Petition
filed under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 (“the
Constitution”), whereby the petitioner prayed as under:
“It is, therefore, respectfully prayed that keeping in view the above circumstances the
impugned order dated 27 -07-2023 passed by Majli -e-Shoora, Mastung may kindly be set aside
and the order dated 28- 03-2023 passed by Qazi Court Dasht I, Mastung may kindly be restored,
in the interest of justice, equity and fairplay.”
2. The brief facts, necessary for the adjudication of the instant petition are that the
petitioner/plaintiff filed a civil suit for declaration, specific performance of agreement/sale deed dated 30th April 2018, correction, transfer of mutation and permanent injunction before the Court of learned Qazi, Dasht -I, Mastung (“trial Court”), against the respondents/defendants. It
was averred that through a registered sale deed dated 30th April 2018, the petitioner purchased 10 acres of land under Khasra Nos. 1800, 1798, and 1797, Khatooni Nos. 58 and 125, Khewat No. 3, Mouza Pingo, Tehsil Dasht, District Mastung, from the respondents for a total sale consideration of Rs.1,62,50,000/ -, out of which an amount of Rs.84,00,000/ - was paid through
various modes and dates. The respondents handed over possession of only 6 acres, failing to deliver the remaining 4 acres or complete the transfer of mutation. Despite repeated approaches
by the petitioner to the respondents and intervention by notables of the area i.e. Sardar Kamal
Khan Bangulzai and Sardar Liaquat Ali Kurd, initially the respondents made commitment to
fulfil their obligation under the referred sale deed, but latter on refused to honor the agreement.
3. The suit of petitioner/plaintiff was contested by the respondents by means of filing
written statements. Subsequently, on 8th November 2022, due to the non- appearance of the
petitioner’s previous counsel, the suit was dismissed under Order IX Rule 8, C.P.C. Upon
acquiring knowledge of the dismissal, the petitioner promptly filed an application under Order IX Rule 9, C.P.C. along with an application under Section 5 of the Limitation Act, seeking restoration of the suit. The learned trial Court, after hearing both sides, allowed the application, vide order dated 28th March 2023, whereby restored the suit of the petitioner.
4. Being aggrieved, the respondents assailed the order of learned trial Court before the
learned Majlis -e-Shoora, Mastung (“Revisional Court”), whereby the revision petition of the
respondents was allowed and the restoration order was set aside, vide impugned order dated 27th July 2023. Whereafter, the petitioner has filed the instant constitutional petition.
5. Learned counsel for the petitioner contended that when the main suit of the
petitioner/plaintiff was rejected, the matter was actually fixed for arguments on an application
under Order XXXIX Rules 1 and 2, C.P.C., therefore, at that stage, the provisions of Order VIII Rule 9, C.P.C. were not attracted; that the trial Court ought to have confined itself to deciding the said application rather than rejecting the entire suit; that subsequently realizing the legal error, the trial Court rightly restored the suit; however, the revisional Court, without proper appreciation of the record set aside the restoration order in an arbitrary and illegal manner; that the proper proceedings in a civil suit commence only after framing of issues and since no issues had been framed at the time of rejection, the order dated 8th November 2022 was void ab initio; that consequently limitation does not run against a void order; that the revisional Court failed to appreciate this settled principle and passed the impugned order in a negligent manner, warranting interference by this Hon’ble Court.
6. Conversely, learned counsel for the private respondents as well as learned Assistant
Advocate General strongly opposed the contentions so raised by the learned counsel for
petitioner, thus supported the impugned order and contended that the trial Court’s discretion was improperly exercised and the revisional Court rightly set aside the same.
7. Arguments heard. Record perused.
8. Before indulging into the arguments of the learned counsel for the parties, it would be
appropriate to take a glance upon the Order IX Rule 8, C.P.C., which reads as under:
“8. Procedure where defendant only appears. -Where the defendant appears and the
plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that
the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.”
9. Since the term “hearing” has not been defined in the Code of Civil Procedure, 1908.
However, Wharton’s Law Lexicon interprets the word “hearing” as it signifies an “investigation of a controversy.” The legal import of the term, therefore, relates to the stage of proceedings where the Court examines the evidence or considers the substantial questions involved in the suit, enabling it to arrive at a final adjudication. It does not encompass the consideration of an interlocutory or miscellaneous matter. Consequently, when the wording of an order indicates, as case in hand is concerned, the perusal of record implicitly shows that the date was fixed not for hearing of the suit, rather the same was fixed merely for consideration of an interim or interlocutory application, the passing of any ex -parte order against the petitioner on such a date
would be without jurisdiction, and such an order, being coram non judice, is a nullity in the eyes of law. Reliance in this regard can be placed on the judgment of Hon’bel Supreme (AJ&K) in the case titled as “Habib Bank Ltd v. Kh. Muhammad Ishaque, (PLD 1983 SC (AJ&K) 223)”, whereby the apex Court has held as follows:
“13. The word "hearing" it may be observed has been defined now -here in the C.P.C. As
defined in Wharton's Law Lexicon it means "investigation of a controversy". The word "hearing" therefore, means taking of evidence or consideration of question relating to suit enabling the Judge to come to a final adjudication and not consideration of merely an interlocutory matter. Where the wordings of the order indicate (as the case here is) fixation of date not for hearing but
for consideration of merely an interlocutory matter ex- parte order against the defendant cannot
be passed on such a date and if it is done it being without jurisdiction is a nullity.”
10. It is an admitted position that the case was not fixed for hearing of the main suit, rather
for passing of an order on a miscellaneous application under Order XXXIX Rules 1 and 2, C.P.C. The learned trial Court, while dismissing the entire suit on 8th November 2022 due to non-appearance of counsel, clearly exceeded its jurisdiction. The proceedings under Order
XXXIX Rules 1 and 2, C.P.C. are of an interlocutory nature; dismissal of such application or non-appearance of a party thereon cannot entail dismissal of the main suit unless specifically
fixed for hearing. The trial Court was bound to confine itself to deciding the pending application. Its order dismissing the entire suit was, therefore, illegal, without jurisdiction, and void in the eyes of law.
11. Subsequently, the learned trial Court realized the error, as such, has rightly exercised its
discretion under Order IX Rule 9, C.P.C. by restoring the suit, vide order dated 28th March 2023. The revisional Court, however, failed to appreciate the factual and legal position and mechanically set aside the restoration order without addressing the question whether the issues were framed in the main suit and matter was fixed for hearing or fixed for passing an interlocutory order, but instead of appreciating the legal aspect of the case has passed the impugned order dated 27th July 2023, in slipshod and cursory manner. In this regard we are fortified by the judgment of the Supreme Court of Pakistan, as such, place reliance upon the dictum explained in the case of “Sabir Hussain v. Azra Begum and 5 others, (2017 YLR Note 410)”, wherein it has been held as under:
“8. A suit can be dismissed for non- appearance of the plaintiff under the provision of
Order IX, Rule 8 of the Civil Procedure Code, if the date was fixed for hearing. According to the peculiar facts of this case in the light of interim order of the trial Court referred to and discussed hereinabove, it is clear that the date was not fixed for hearing. If the date is not fixed for hearing, neither the suit can be dismissed nor ex- parte order can be recorded. If any such order is recorded
it will be deemed as without jurisdiction and nullity in the eye of law. This Court in the case reported as Habib Bank Ltd. v. Kh. Muhammad Ishaque [PLD 1983 SC (AJ&K) 223] has elaborately defined the term "hearing" and in case the date was not fixed for hearing, any order for dismissal of suit or ex -parte order was declared as without jurisdiction. The conclusion of the
report is " held that the ex -parte order dismissing the suit was without jurisdiction since there
was no hearing of the suit on the date when default of appearance was made.”
12. Now adverting to the second limb of arguments of the learned counsel for the petitioner
with regard to limitation. It is by now settled that limitation does not run against a void order,
because an order that has no legal existence cannot trigger the period of limitation. Therefore, the petitioner’s application for restoration, even if filed after some delay, was rightly considered and allowed by the trial Court after condoning the delay in accordance with law. Reliance in this
regard can be placed on the judgment of Hon’ble apex Court passed in the case titled as “Mst.
Surya Parveen v. Mst. Rukhsana Hanif and others, (2012 SCMR 656), for convenience the
relevant para whereof is reproduced as under:
“11. The above referred circumstances, which are not in contention, show clearly that the
petitioner was not at fault and, therefore, cannot be blamed for the dismissal of her suit for non-
prosecution. The error, if any, lay with the learned trial Court which had not gone through the record to ascertain the background which had led to the transfer of the case to it. The question of limitation in respect of the application seeking restoration of the suit would only be relevant if the dismissal itself was proper. Since it was not, it has to be set aside because, as rightly pointed
out by learned Advocate Supreme Court, it is the Court which has to rectify its error. Learned
Advocate Supreme Court for the respondents founded his case primarily on the plea that the petitioner had been indolent in filing a belated restoration application despite knowledge that her suit stood dismissed for non- prosecution. On this basis it was contended that even if the order
dated 2 -6-1996 was void, the relief under Article 185(3) of the Constitution being discretionary,
should be declined. This submission will be dealt with shortly.
12. It is not necessary in this case, to decide as to whether Article 163 of the Schedule to
the Limitation Act was applicable in the case as argued by learned counsel for the respondents or
that it was Article 181 of the said Schedule which was applicable as urged by learned Advocate
Supreme Court for the petitioner. As contended by learned counsel for the petitioner, the fact that the suit of the petitioner was dismissed without notice to her on a date i.e. 2- 6-1996 which was
not a date of hearing, is sufficient for the purpose of holding that the dismissal of the suit for
non-prosecution is not legally sustainable.”
[EMPHASIS ADDED]
13. Be that as it may, the valuable rights of the parties are involved in the matter. It has also
been settled by the apex Court that proper place of procedure in any system of administration of
justice is to help the masses not to frustrate the grant of rights of the people, thus all technicalities should have been avoided unless it is essential to comply with them on ground of
public policy. The principle enshrined in the maxim “audi alteram partem” is applied in all
judicial and quasi -judicial proceedings. The rule of propriety demands and principle of
administration of justice requires that a fair opportunity of hearing shall be provided to all the contesting parties. In this regard Article 10- A of the Constitution can be referred. Furthermore, it
is the persistent view of the superior Courts that the cases be decided on merits not on
technicalities.
14. Thus, in view of the above, the impugned order passed by the learned revisional Court
suffers from jurisdictional defect and misapplication of judicial discretion, warranting
interference under constitutional jurisdiction.
15. For the reasons discussed above, the constitutional petition is allowed and the impugned
order dated 27th July 2023 passed by the learned Majlis -e-Shoora, Mastung is set aside, while
the order dated 28th March 2023 passed by the learned trial Court restoring the civil suit is
upheld.
The learned trial Court shall proceed with the matter strictly in accordance with law and
decide the same on its own merits, preferably within a period of three (3) months. UN/156/Bal. Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.