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Civil Revision No.469 of 1978, decided on 30th May, 1982.

---0. IX, R. 8--Dismissal of suit--Application for restoration--Suit dismissed by trial Court on a date not fixed for hearing but for result of compromise being reached between parties outside Court for which negotiations had been going on and for which adjournment was sought by parties--Suit, held, was not liable to be dismissed under 0. IX, R. 8, Civil Procedure-order--Power under 0. IX, R. 8, C.P.C. could not be exercised to penalise a defaulter if case had not been fixed for hearing--Order of dismissal set aside and application for restoration of suit allowed.

Mst. Ghulam Sakina etc. v. Karim Bakhsh P L D 1970 Lah. 412; Karim Bakhsh etc. v. Gul Muhammad and others P L D 1971 Lah. 748 and Sh. Ghulam Mujtaba and others v. Noor Muhammad Khan P L D 1964 B J 8.

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S. M. Masud for Petitioner.

Mian M. Zafar Yasin for Respondents.

Dates of hearing: 12th, 23rd January and 2nd February, 1982.

Facts giving rise to this civil revision are that the petitioner had filed a suit for pre-emption against the respondents in the Court of Civil Judge, Kabirwala, which was resisted by the respondents. Issues were framed on 16-11-1975 and the case was adjourned to 20-11-1975 for the plaintiff's evidence who closed the same on 4-9-1976 and the next date i.e. 14-10-1976 was fixed for recording the evidence of the defendants. Meanwhile an application for amending the plaint was moved on behalf of the plaintiff and the defendants filed reply thereto on 12-11-1976. Arguments on this application were scheduled to be heard on 18-11-1976 but the arguments could not be heard on that date as the Presiding Officer proceeded on leave, so the next date was fixed as 8-12-1976.

2. On 8-12-1976, it was reported that the learned counsel for the plaintiff has died and, therefore, the case was put off till 29-1-1977. On this day the counsel for the parties informed the Court that since negotiations for compromise between the parties were going on, therefore, the case may be adjourned to 29-1-1977. On this date, the counsel for the plaintiff absented and the learned Civil Judge proceeded to dismiss the suit under Order IX, Rule 8, C.P.C. It may be mentioned that on that day the plaintiff and his four sons were in jail in some criminal case and they were released on 7-2-1977.

3. Having learnt about the dismissal of his suit, the petitioner filed an application for restoration of his suit on 26-4-1977 on the ground that during the proceeding his counsel had died and also that he and his sons were in jail, therefore, he was unable to prosecute his suit. The learned Civil Judge framed the following issue on 24-7-1977.

"Whether there exists sufficient cause for restoration of suit O.P.A."

The petitioner appeared as his own witness as P.W.2 and also examined one Muhammad Yousif P.W.1. The respondent declined to produce any evidence in rebuttal and the learned Civil Judge by his order, dated 10-10-1978 dismissed the application for restoration saying that the suit was dismissed in default on 29-i-1977 and the petitioner was released from jail on 7-2-1977 and yet he filed the application for restoration on 26-4-1977 (with a delay of 78 days which was barred by time in view of Article 164 of the Limitation Act (which provided the time limit of 30 days for making an application for restoration of a suit after its dismissal in default). The petitioner filed an appeal before the learned District Judge, which was dismissed on 1-2-1979 as being barred by time. Being aggrieved of the two orders declining the restoration of his suit, the petitioner has come up in the instant revision petition.

4. Learned counsel appearing on behalf of the petitioner has argued that the suit of the petitioner could not be dismissed in default under Order IX, Rule 8, C.P.C. on 29-1-1977 because it was not the 'date fixed for hearing' of the suit. As a matter of fact on that date the parties were only required to inform the Court whether the compromise had been effect or not. He further argued that the' order of dismissal being without jurisdiction, no limitation was to run against it. Learned counsel placed reliance on Mst. Ghulam Sakina, etc. v. Karim Bakhsh P L D 1970 Lah. 412, Karim Bakhsh etc. v. Gul Muhammad and others P L D 1971 Lah. 746 and' Sh. Ghulam Mujtaba and others v. Noor Muhammad Khan P L D 1964 B J 8.

5. On the contrary learned counsel appearing for the respondent has supported the impugned order reiterating the ground which was perused in the service by the learned trial Court of filing the application for restoration after the prescribed limit of 30 days. He canvassed that the orders of the two Courts below dismissing the suit being legal were unexceptionable.

6. 1 have considered the arguments of the learned counsel for the parties and the authorities cited at the bar and also perused the record.

7. A perusal of the record bears ample testimony to the fact that on 12-1-1977 the parties had informed the Court about the negotiations which were going on between the parties for compromise and had sought the adjournment and as a result thereof the case was adjourned to 29-1-1977. Obviously on this date the parties were to inform as to whether the negotiations for compromise had materialized or not It cannot, therefore, be said that the suit was fixed for hearing on that date. In these circumstances, the suit was not liable to be dismissed under Order IX, Rule 8, C.P.C. because powers order this rule could be exercised to penalize a defaulter if the case has been fixed for hearing. In this view of the matter, I hold that the order of the learned Civil Judge, dated 29-1-1977 is without jurisdiction and that being so, no time limit runs against the said illegal order. Since the order of the learned Additional District Judge also proceeds on the same hypothesis; therefore, the same is also illegal. The petition for restoration of the suit filed by the petitioner, therefore, is hereby accepted, hence both the orders of the two Courts below i.e. order of learned Civil Judge, Kabirwala, dated 29-1-1977 and that of learned Additional District Judge, Multan, dated 1-2-1979 are not sustainable in law, in view of the authorities quoted above.

8. The result is that the revision petition is accepted and suit of the petitioner is restored to its original position for fresh trial by a competent Court.

M . Y . H . Revision accepted.

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