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‑‑ O. IX, rr. 9 & 10 and S. 115‑Dismissal of suit for non, appear ance of parties‑Date fixed not for framing of issues or for hearing of suit but for appearance of parties pursuant to a consent order for hearing of application for appointment of receiver afresh ‑ Lower Court, held, fully justified in setting aside ex parte order of dismissal and penalty by way of dismissal of suit could not be passed on mere assumption that Court could frame issues.

‑‑ O. IX, rr. 9 & 10 and S. 115‑Dismissal of suit for default . on a date not fixed for hearing‑Sufficient cause made out for setting aside order of dismissal of suit ‑ Revision against setting aside, dismissed.

Allah Ditta v. Aziz Din P L D 1981 Lah. 508 ; 1982 C L C 767 ; Nazir Hussain Shah v. Allah Ditta 1973 S C M R 103 and Malik Muhammad Nazir v. Mian Abdul Rahim P L D 1968 Lah. 794 rel.

Jhamat Jethanand for Applicant.

Hassan Mahmood Baig for Respondent No. 1.

Date of hearing : 25th August, 1982.

This revision petition is directed against the order dated 29th November, 1980 (Civil Miscellaneous Appeal No. 45/1980 and 26th March, 1980 (Suit No. 102/ 1977) passed by the 11 Additional District Judge Hyderabad and IVth Extra Joint Civil Judge Hyderabad respectively in the following circumstances

The respondent No. I filed Suit No. 102/1977 in the Civil Court at Hyderabad in which the applicant/ defendant made appearance and filed his written statement.

The plaintiff in the suit moved an application for appointment of receiver which was allowed by order passed on 17th December, 1977. Against the above‑mentioned order an appeal (Miscellaneous Civil Appeal No. 107/77) was filed which was heard by the learned IV Additional District Judge, Hyderabad. This appeal was allowed by consent of the parties whereby the appointment of receiver by the trial Court was set aside and it was ordered that the said application for appointment of the receiver shall be heard afresh by the learned Civil Court.

After the receipt of the R and P by the trial Court after disposal of Civil Miscellaneous Appeal No. 107/77 as above, one Haji Muhammad Ramzan, respondent No. 3, was joined as defendant No. 3 in the suit. He made appearance and filed objections to the application for appointment of receiver and also moved an application under Order VII, rule 11, C. P. C. The written statement, by him was filed on 2nd March, 1978. The application for appointment of receiver continued to remain pending but the application under Order V11, rule 11, C. P. C. was heard and was dismissed on 15th March, 1978. The matter was then postponed for hearing of the application filed by the respondent No. 1 for appoint ment of receiver as directed in the Civil Miscellaneous Appeal No. 107/77, referred to above.

2. In the meantime against the order of dismissal of application under Order VII, rule 11, C. P. C. Revision Application No. 2278 was filed in the Court of District Judge, Hyderabad and the R and P was called in the said petition by the revisional Court. The revision petition came up for hearing before the 1st Additional District Judge and remained pending there for some time. Ultimately the same was withdrawn on 28th May, 1979 and the R and P thus returned was received in the Court of the Civil Judge on or about 4th December, 1979.

Notices for appearance on 13th December, 1979 before the trial Court were sent to all the Advocates for the parties and were served. However on the said date none of the parties appeared except the appli cant/defendant No. 1 and the case was again postponed for 20th December, 1979 when only defendant No. 1 made appearance and none else appeared. In the circumstances the case was again postponed to 23rd December; 1979 on which date the plaintiff was absent and the learned Civil Judge by order passed on the same date dismissed the suit for default for appearance of the plaintiff.

An application for setting aside the ex parte order was moved on behalf of the respondent No. 1 plaintiff purporting to be under Order XLVII, rule 1, C. P. C. on the plea that the notice for 13th December, 1979 was not served upon the plaintiff respondent No. 1 or their Advocate and that the case was not fixed for hearing. It was submitted that according to the order of the appellate Court passed by consent of the parties, the application under Order XL, rule 1, C. P. C. was to be heard and that the suit was not fixed for hearing. The learned Civil Judge allowed the application by order passed on 26th March, 1980 holding therein that the case was not fixed for framing of issues or hearing.

An appeal against the aforesaid order was filed. It was heard by the learned II Additional District Judge Hyderabad who dismissed the appeal and maintained the order of the trial Court with the observation that Mr. Kazmi the Junior Advocate of Mr. Hassan Mahmood Baig upon whom the notice was served had met with an accident and, therefore, could not communi cate the date for appearance of the parties to his senior and it was further observed that the party could not be penalised for mistake of the counsel. The learned lower appellate Court while noting the argument that the suit was not fixed for hearing when it was dismissed for default observed that it was not necessary to enter in this discussion, as according to him the Courts have to see and exercise their power as to how the interests of justice would be safeguarded and not to dismiss application on mere technical grounds. The learned lower appellate Court also observed that the plaintiff had been perusing the matter throughout.

3. The above orders have been challenged by the petitioner by preferring this petition under section 115, C. P. C.

4 I have perused the record of the case with the assistance of the learned counsel for the parties and find that the R and P shows that the case was sent back to the learned Civil Court by order passed in the Civil Miscellaneous Appeal No. 107/77 to hear afresh the application for appointment of receiver. Thereafter, new party was added who moved an application under Order VII, .rule 11, C. P. C. which was rejected against which Revision Application No. 22/78 was filed wherein the record of the trial Court was called for After the said revision application was dismissed the record was sent back to the trial Court who issued notices to the Advocates for the parties on the dates noted above for mere appearance. The said notices issued for appearance of the parties were for 13th December, 1979 when except the defendant No. I none of the other parties was present and thus the matter was postponed to 20^th December, 1979 on which date the defendant No. I alone was present and again none else was present. The impugned order shows that the date fixed for 23rd December, 1979 was not for framing of the issues or for hearing of the suit. Nothing has been brought on the record to show that except for appearance of the parties pursuant to the consent order passed in Civil Miscellaneous Appeal No. 107/77, for hearing of the application (for appointment of receiver) afresh, any order was passed or direction given for fixing the case for hearing. In the circumstances I find that the learned lower Courts were fully justified to set aside the ex parte order of dismissal of suit passed on 23rd December, 1979. 99

5. Mr. Jhamat Jethanand the learned Advocate for the applicant however argued that the plaintiff was required to be present persuant to the notice and that on his default in appearance the Court could dismiss the suit for default as the Court could have framed issues on that date. This argument of the learned counsel though attractive is not acceptable as the penalty by way of dismissal of the suit could not have been passed on the mere assumption that the Court could have framed issues on 23rd December, 1979. The notice did not indicate, and in fact it has not been shown from the record, that any such direction was given by the trial Court.

6. Mr. Hassan Mahmood Baig the learned counsel for the respon dent No. 1 invited my attention to the case Allah Ditta v. Aziz Din (1973 S C M R 103), where it was observed as follows :‑

"As pointed out earlier, the suit brought by the petitioner was also not fixed for hearing when it was dismissed in default on 8th September, 1973, inasmuch as what was intended to be done on the said date was to make an order for the future progress of the case. The order of the learned Civil Judge relating to dismissal of the suit is, therefore, void abinitio, without jurisdiction and a nullity in the eye of law. In this view of the matter, the order of the learned trial Court as well as the order of the learned appellate Court, by which the order of the trial Court had been upheld, cannot be sustained."

7. Reference may also be made here to the case reported as 1982 C L C 767. The learned Single Judge of this Court in that case held that where notice was issued for appearance of the parties and not for hearing of the suit and that the date was fixed for determining the future conduct of the suit, the trial Court could not have dismissed the suit for non appearance of the parties. The learned Single Judge further observed that after holding the service of notice proper the Court should have fixed the matter for hearing.

8. I may also refer to the case of Nazir Hussain Shah v. Allah Ditta (1973 S C M R 103), wherein question came up for consideration as to restoration of a suit dismissed for default on a day not fixed for hearing. The Honourable Supreme Court observed that the suit was rightly restored by the learned trial Judge as the date was not fixed for hearing of the suit and, therefore, the suit could not be dismissed in the absence of the plaintiff/respondent.

9. Reference may lastly be made to the case of Malik Muhammad Nazir v. Mian Abdul Rahim (P L D 1968 Lab. 794), where Mr. Justice Muhammad Akram (as he then was) laid down the principle that where ex parte order was passed against the defendant without any notice of date of hearing it was not in accordance with the provisions of Order IX, rule 6, C. P. C. and accord ingly the application for setting aside the ex parte decree was not appro priately to be governed by Order IX, rule 13, C. P. C. to which Article 164 of Limitation Act was applicable and that the applicant was compe tent under section 151, C. P. C. in which the period of Limitation is three years as provided by Article 181 of the Limitation Act.

10. In view of the above discussion and finding that the suit was dis missed for default on a date not fixed for hearing and that sufficient cause was made out for setting aside the order of dismissal of the suit, I find no merit in this revision application which is accordingly dismissed.

In the circumstances of the case there shall however be no order as to costs.

M.Y.H. Petition dismissed.

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