Find a Lawyer

Civil Revision No. 644 of 1946, decided on 26th November, 1947.

A. R. Niazi for Appellants.

Nazir Ahmad for Respondents.

O. IX, r. 3‑"Hearing"‑Mean ing of‑No investigation of matter germane to suit on date of default‑Dismissal of suit without jurisdiction.

The expression hearing' is defined in Wharton's Law Lexicon as "investigation of a controversy."

Where no investigation of any matter germane to the suit fell to be performed by the trial Court, and the only order which it could possibly have made was an order of an administrative nature.

Held, that the order dismissing the suit was without jurisdiction since there was no hearing of the suit on the date on which default of appearance was made.

A I R 1936 Lah. 280 ; 57 Ind. Cas. 748 relied on.

.‑The facts of the case out of which this revision petition arises may be briefly stated. On the 18th November 1943, Mst. Barkat Bibi and two other plaintiffs filed a suit against five persons for possession of land in the Court of the Senior Subordinate Judge, Gujranwala. Evidence having been recorded and final arguments heard, the learned Subordinate judge in a lengthy order framed two additional issues on the 4th October 1945, and fixed a date for evidence of the parties in relation to the additional issues. A revision petition was filed in this Court against the order of the 4th October 1945, and the file of the case was requisitioned by this Court. In consequence, the trial Court could not proceed with the case and on the 20th November 1945 there is an order stating that the file of the case was in the High Court and the case could not proceed. Another date was fixed and in consequence of the file not having been received, this date was extended from time to time. On the 2nd May 1946, in the presence of counsel for the parties an order was made as follows :‑

" The file has not yet been received back from the High Court. Let it be awaited. Let this case be put up on the 29th May 1946." The last two sentences in the above quotation are a free translation of the following words in Urdu :‑

"Intizar hokar 29‑5‑1946 ko pesh howe."

On the 29th May the file had been received, and when the case was called, counsel for the defendants appeared but neither the plaintiffs' counsel nor any of the plaintiffs was present. This was noted on the file and the Court recorded that it would wait for the plaintiffs. The case was called twice after that, and on each occasion neither of the parties was present, and the Court finally made an order dismissing the suit under Order IX, rule 3, Civil Procedure Code. This rule runs as follows :‑

" Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.

On the same day an application was made on behalf of the plaintiffs for the restriction of the suit in which it was alleged that Ghulam Rasul plaintiff was delayed in reaching the Court because the lorry by which he travelled reached Gujranwala at 11. a.m. instead of 10. a.m. Two witnesses produced by Ghulam Rasul stated that the lorry reached at midday, but even this was not sufficient to satisfy the Court which had taken the precaution of noting the times at which the case had been called on the 29th May and these times were 11‑15 a.m. 12‑55 p.m. and 2‑40 p.m. The Court also noted in its order that the plaintiffs were represented by counsel and no explanation was forthcoming for a failure of the counsel to appear. On these grounds, the petition for restoration was dismissed, and the plaintiff have now come up to this Court in revision.

On behalf of the petitioners the principal argument advanced is that the date 29th May 1946 had not been fixed for any hearing of the case, but merely for the purpose of informing the Court whether the record had been received back from the High Court, and the most which could have been done on that date would be, if the record were received, to intimate the order of the High Court to the parties, and take further steps in accordance with that order. If the revision petition had succeeded and it had been held that the fresh issues framed by the Court were unnecessary, the position would have been that, unless the Court directed otherwise, no further steps would be required by the parties in the case and nothing would be left to be done except pronouncement of judgment by the Court. On the other hand, if the revision petition had failed (which was actually the case), it would be necessary for the Court to grant an adjournment for the production of evidence in relation to the fresh issues. A third case is also possible, namely that in which additional directions might have been given by the High Court, and it would be for the trial Court to intimate these directions to the parties sand allow them time to make compliance. In no sense could these steps be regarded as "hearing of the suit." The only use to which the appearance of the parties on the 29th May 1946 could, have been put 'by the Court was that of intimating the High Court's orders to the party and if necessary, allowing them time for taking the necessary steps in com pliance therewith. Reliance was placed on a Single Bench decision of this Court published as Manohar Dass Birandari Sheikhupurian (A I R 1936 Lah. 280). There a trial Court had appointed a Commissioner to estimate the market value of the, suit property and directed that he should submit his report on the 15th January 1935. When the case was put up on that date the plaintiff: and his counsel were absent but the defendant was present and the Court dismissed the suit under Order IX, rule 1, Civil Procedure Code. The matter was brought up in revision and the question arose whether the date 15th January 1935 could be regarded as the date of hearing. It was held by the learned Judge that there was no hearing on that date, which was fixed merely for receipt of the Commissioner's report ; on that date the Court might have extended time for submission of the report or might have fixed a date for hearing of the case in the ordinary course. In reaching this decision, the learned judge cited a decision of a Bench of the Patna High Court published as Balmukand v. Lachmi Narain (57 Ind. Cas 748), where it was held by the expression hearing of the suit' is meant a "hearing at which the Judge would be either taking evidence or hearing arguments or would have to consider questions relating to the determination of the suit which would enable him finally to come to an adjudication upon it", and that interlocutory matters which involved decisions merely as to the future conduct of the suit were not included within the term. I am in respectful agreement with the conclusions reached in these, authorities.

The expression 'hearing' is defined in Whartons' Law Lexicon as "investigation of a controversy." It is quite clear that on the 19th May 1946, no investigation of any matter germane to‑the suit fell to be perform ed by the trial Court in this case. The only order which it could possibly have made was an order of an administrative nature. I may note here that on at least two earlier dates, namely the 21st February 1946 and the 3rd April 1946 the Court had adjourned the case to await receipt of the record from the High Court in the absence of the plaintiffs and their counsel. Since upon receipt of the record, an administrative order for the further conduct of the suit still had to be made, the mere fact that on the 29th May 1946, the file had been received does not serve to differentiate that date in any relevant sense from the early dates on which there had been default of appearance on the part of the plaintiffs.

Holding that the order dismissing the suit was without jurisdic tion, since there was no hearing of the suit on the date on which default of appearance was made, I allow this petition and setting aside the order, return the suit to the trial Court for disposal according to law. The parties are directed to appear in the trial Court on the 15th Decem ber 1947, to receive instructions for further proceedings. Costs of the petition will be borne by the parties concerned.

A. H. Revision accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.