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Civil Revision No.4 of 2013, decided on 27th January, 2015.

----O.IX, Rr.3 & 9---Limitation Act (IX of 1908), Art. 163---Dismissal of suit for non-prosecution---Date of hearing---Scope---Suit was dismissed for non-prosecution on the date fixed for filing written statement--- Plaintiff filed application for restoration of suit after eight months which was dismissed on grounds of limitation---Validity---Suit might be dismissed if neither party had appeared on the date of "hearing" which would be defined as date on which court would examine record of pleadings to understand contentions of pleadings or date on which issues were formulated---Date fixed for filing written statement was not to be termed as date of hearing---Revision was allowed, in circumstances. PLD 1975 SC 678; PLD 1982 AJ&K 54; 1991 CLC 1766 and 1987 SCMR 733 rel. 2005 SCR 23 ref. Raja Masood Khan for Petitioner. Raja Muhammad Saeed Khan for Respondents.

The above titled revision petition has been filed against the order passed by learned Additional District Judge, Kotli dated 8-2-2013 whereby application for restoration of suit has been refused. 2. Facts stated are that Tahir Mahmood, the petitioner/plaintiff filed a suit for specific performance of contract in the Court of District Judge Kotli which was made over to learned Additional District Judge Sehnsa Camp Kotli for hearing and disposal under law. Learned Additional District Judge dismissed the suit for non-prosecution vide order dated 14-4-2012. The preceding order dated 2-3-2012 shows that petitioner/plaintiff was not present before the Court on that date whereas counsel for the non-petitioners/defendants was present and the defendants were directed to file written statement on next date i.e. 14-4-2012. On the relevant date, none of the parties appeared before the Court, so, the suit was dismissed for non-prosecution. 3. I have heard learned counsel for the parties. It is the case of the petitioner that he is a student and was studying in Mirpur at the time when the case was dismissed. Whereas learned counsel has contended that he was busy before another Court on the relevant date when the case was called on, so, his absence is not wilful. A copy of professional diary has also been attached with the application for restoration. Learned Additional District Judge did not concur with the arguments advanced on behalf of the petitioner and opined that application for restoration has been filed after a delay of 8 months which has not been explained. 4. Order IX, Rule 3, C.P.C. lays down that where neither party appears when the suit is called for hearing, the Court may make an order that the suit may be dismissed. The remedy available with such a plaintiff has been provided by Rule 4 of Order IX which prescribes that plaintiff may file a suit or may apply for an order to set dismissal aside and if he satisfies the Court that there was a sufficient cause for his non-appearance, the Court shall make an order setting aside the dismissal. As mentioned earlier, a suit may be dismissed if neither party appears when the suit is called on for hearing. The word "hearing" has not been defined specifically in C.P.C. However, it has been laid down by the superior Courts that the date should be for hearing of the case by Court itself, of which the parties have notice. 1983 SCMR(sic) and PLD 1975 SC 678 may be referred. It has further been laid down in PLD 1982 AJ&K 54 that it is the date on which the Court examines the pleadings in order to understand the contentions of the parties and in suits in which issues are to be framed, it is the day on which the issues are framed. 1991 CLC 1766 may be referred. It has been further laid down in 1987 SCMR 733 that date fixed for filing written statement is not a date of hearing. In view of afore-cited cases, when the preceding order of the Court below is examined, it is found that case of the parties was fixed for filing written statement on the date when the suit was dismissed for want of appearance. Legally the Court could not have recorded such an order of dismissal. 5. Learned counsel for the non-petitioners has relied on 2005 SCR 23 which says that if sufficient cause is not shown, a suit or appeal may not be restored. This judgment does not help the case of the non-petitioners in view of circumstances of the case. Upshot of the above discussion is that revision petition is accepted and order of the Court below is set aside. The Court below is directed to proceed with the case in accordance with law. MM/17/AJ&K Petition accepted.

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