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Civil Revision Petition No. 206 of 1953, decided on 10th May 1954, under section 44 of Act IX of 1919 for revision of the order of M. G. Cheema, Senior Civil Judge, Lahore, dated the 31st August 1953.
‑Meaning‑Case fixed for appearance of parties simply for changing a previously given date for evidence ‑Absence of plaintiff‑Case cannot be dismissed for default- Order of dismissal without jurisdiction‑Application for resto ration of suit lay under S. 151 and not under O. IX, rr. 8 and 9 ‑Limitation Act (IX of 1908), First Schedule, Art 163 and 181.
A date fixed for simply changing a date already fixed for the production of evidence does not amount to a hearing of the suit".
If the date is not fixed for the hearing of the neither Order 9 rule 8 nor Order 17 rule 2 C. P. C. would give any power to the Court to dismiss the suit for default that date.
The Court has no jurisdiction to dismiss a suit on a date which is not fixed for the "hearing of the suit", but is fixed only for the purpose of determining some interlocutory matter for the future conduct of the suit.
[Case law referred to.]
An order of dismissal for default in the above circum stances being without jurisdiction and a nullity, it was not necessary to have it set aside.
To such a case Art. 181, Limitation Act applied and not Art. 163 Application for restoration lay under S. 151, C. P. C. and not under O.. IX, rr. 8 and 9.
[Case law referred to.]
‑Dismissal for default without jurisdiction -Application for restoration may also lie by way of review under O. XLVII, r. 1.
Under Order XLVII, rule 1, an application for review can be made inter alia on the ground that there is some error or mistake apparent on the face of the record or for some other sufficient reason.
In this case the date 8th November 1952, was not fixed for hearing of the suit but merely for changing the date for production of ‑ evidence and the order of dismissal of the suit on that date was without jurisdiction and, therefore; a nullity. There was thus a mistake or error apparent on the face of the record and this should also be regarded as a sufficient reason for reviewing the order
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