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Before Munawar Ahmad Mirza, J

Civil Revision No. 20 of 1985, decided on 15th October, 1985.

‑‑ S. 115‑Revision‑Suit of petitioner dismissed for default of appearance on a date fixed only for filing a list of witnesses and not for hearing‑Order of dismissal, held, without jurisdiction All subsequent orders in consequence thereof passed by Courts below also of no legal effect ‑ Order set aside and case remanded for adjudication on merits.

--O. XVII, r. 2‑Revision‑Date of hearing‑" Hearing", held, connotes something effective and germane to progress of matter intended at productive functioning, constituting a step forward in matter rather than mere fixation of date for formal proceedings.

[Words and phrases].

‑‑ O. XVII, r. 2‑Date of hearing‑Daze fixed for filing a list of witnesses, held, could not be construed as a 'date of hearing' Order of dismissal of suit for default on such date void.

Allah Ditta v. Aziz Din P L D 1981 Lah. 508 ; Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another P L D 1975 S C 678 ; Ghulam Sakina and others v. Karim Bakhsh and others P L D 1970 Lah. 412 ; Rahim Bakhsh and another v. Gul Muhammad and others P L D 1971 Lah. 746 ; Mst. Gul Bibi v. Hamesh Gul and another P L D 1976 Pesh. 108 and Sved Nazir Hussain Shah v. Allah Ditta 1973 S C M R 103 rel,

‑‑ O. IX. r. 9, O. XVII & S. 151‑Limitation Act (IX of 1908), Art. 181‑Suit‑Dismissal‑Restoration‑Limitation‑Suit dismiss ed for default of appearance on a date not fixed for hearing but for filing list of witnesses‑Provision of O. IX, r. 9. Civil Procedure Code, for seeking restoration would not apply and inherent power under S. 151, Civil Procedure Code, would be attracted for said purpose and period of limitation would be regulated by residuary Art. 181. Limitation Act, 1968.

Syed Qasim Shah v. Deputy Commissioner, Kachhi District and another P L D 1976 Quetta 2 ; K. S. Abdul Latif v. The Republic of Pakistan and others P L D 1971 Quetta 77 and Rehman Weaving Factory, Bahawalnagar v. Industrial Development Bank P L D 1981 S C 21 ref.

O. XVII, r. 2 ‑‑Date of bearing‑,No enquiry needed for ascer taining whether a date fixed by Court for filing list of witnesses is a date of hearing' or not, held, was a ‑point of law which could be raised at any stage.

Mansab Ali v. Amir and others P L D 1971 S C 124 ; Haji Abdullah Khan and others v. Nisar Muhammad Khan and others P L D 1965 S C 690 and Mst. Umar Bibi and others v. Bashir Ahmed and others P L D 1965 S C 629 rel.

Art. 181‑Civil Procedure Code (V of 1908), O. XVIL r. 2 & S. 151‑Limitation ‑Restoration of suit dismissed for default- Order of dismissal for default on a date not fixed for hearing‑ Order unwarranted and void‑Application under S. 151, Civil Pro cedure erode, for restoration would not be deemed to be barred by time Application disclosing justifiable circumstances prevent ing plaintiff from attending Court‑Limitation, held, would not run against applicant.

Syed Muhammad Alam v. Syed Mehdi Hussain and others P L D 1971 Lah. 6 ; Rahim Bakhsh v. Gul Muhammad and others P L D. 1971 Lah. 740 ; Sved Qusint Shah v. Deputy Commissioner, Kachhi District and another P L D 1976 Quetta 42 ; Faqir Muhammad v. Mulla Mahmood P L D 1973 Quetta 1 ; Syed Nazir Hassan v. Settlement Commissioner. Lyallpur and another P L D 1974 Lah. 434 ; Yousuf Ali v. Muhammad Aslam Zia and others P L D 1958 S C (Pak.) 104; Khuda Bakhsh v. Khushi Muhammad and others P L D 1978 S C 208 and Mst. Rahmat Bibi and other v. Pannu Khan and others N L R 1982 S C 166 rel.

Amanullah for Petitioners.

Khalid Malik for Respondent.

Date of hearing : 15th October, 1985.

This revision petition is directed against order, dated 5‑8‑1984, where by suit filed by petitioner was dismissed in default and subsequent order dated 27‑11‑1984, rejecting application for restoration as well as, order, dated 14‑2‑1985, passed by Majlis‑e‑Shoora, dismissing appeal against aforesaid order.

2. Brief facts leading to this petition are that on 28‑1‑1984 peti tioners filed a suit for declaration and correction of entries to the extent of th share in the property situated in Mauza Hadwar, Tehsil Bhag. Written statement was filed by respondent on 13‑2‑1984. wherein claim was vehemently refuted. The case came up before Qazi Bhag for adjudica tion, which however, was fixed for 5‑8‑1984, for filing list of witnesses. On that date petitioners were absent accordingly suit was directed to be dismissed to default. Petitioner on 26‑9‑1984, moved an application for restoration wherein it was explained that their absence on the day when case was dismissed in default was not wilful because factually son of petitioner No. 2 died on 4‑8‑1985, on account of which petitioners were busy in his burial ceremonies and were thus prevented from appearing in the Court. This application was resisted by respondents. However, ultimately learned Qazi, Bhag, vide order, dated 27‑11‑1984, rejected the same.

3. Dissatisfied from the order of dismissal of the suit and rejection of restoration application, petitioner on 1‑12‑1984, filed an Appeal No. 2 of 1984 before Majlis‑i‑Shoora, Sibi Division which too was dismissed, vide order, dated 14‑2‑1985. Being aggrieved from orders of both the Courts below, this revision petition was filed on 21‑3‑1985.

4. The factual petition is undisputed that on 5‑8‑1984, matter was fixed only for filing list of witnesses. Majlis‑i‑Shoora, also unequivocally confirmed this aspect in the impugned order. Mr. Amanullah learned counsel for petitioner strenuously urged that on 5‑8‑1984, when suit was dismissed, evidently no effective step connected with its future progress was to be taken, therefore, fixation of case on that date cannot be lawfully deemed to be a "date for hearing", therefore, order of dismissal passed by said Courts was invalid, as such all subsequ ent proceedings are of no legal effect. Mr. Khalid Malik learned counsel for respondent objected to the maintainability of petition contending that points agitated by the petitioner at revisional‑ stage were not pleaded in restoration application, therefore, same cannot be permitted to be agitated. It may be seen that apparently "hearing' in case connotes some thing effective, and germane to progress of the matter, intended at productive function constituting a step forward in the matter rather than mere fixation of date for formal proceedings. It would thus need elucida tion that when a case is fixed merely for filing list of witnesses, whether or a not same constituted "date of hearing" word "Hearing" has not been specifically defined in the Code, therefore, for proper appreciation judg ments wherein this aspect has been adequately dealt with can be conveni ently relied :‑

(i) Allah Ditta v. Aziz Din P L D 1981 Lah. 508.

6. 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 future progress, of the case. The order of the learned Civil Judge relating to dismissal of the suit, is, therefore, void ab initio, without jurisdiction and a nullity in the eyes of law. In this view of the matter. the order of the learned trial Court as well as the order of the learned appel late Court by which the order of the trial Court had been upheld, Cannot be sustained..

(ii) Manager Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another P L D 1975 S C 678

The first question to be considered is as to what precisely is meant by the expression "called on for nearing" in the context in which it is used in Order XLI, rule 17. It may be recalled that on the basis of a large number of authorities mentioned earlier, learned counsel for the appellant had contended before us that the word "hearing" as used in this context means "an effective hearing" when anything germane to the appeal would be done or had to be done. The expression as used in Order IX, rule 8 and Order XVI, rule 2 was interpreted in Sheikh Abdur Rehman v. Shib Lai Sahu and others (i) It was observed as follows :‑

The word "hearing" has not been defined in the Code but it is obvious that it is used in different rules with a view to state the different purposes for which a date for hearing of the suit is fixed. Now in Order I, rule 1, read with rule 3, it would appear that after the institution of the suit when the summons is issued upon the defendants calling upon them to appear upon a particular date and that date is the first hearing of the suit and if the parties fail to appear when the suit is called on for hearing on that date the plaintiff's suit is dismissed for default. Various steps have to be taken by the parties in a suit in order that it may be ready for final hearing which means the examination of witnesses, the tendering of documents, and the hearing of arguments. At the intermediate stage in order to enable or compel the parties to take necessary step in the prosecution of the case the Court may fix dates for some particular action to be taken. These dates are dates for hearing of that particular matter which is specified in the order of the Court".

(iii) Mst. Ghulam Sakina and others v. Karim Bakhsh and others P L D 1970 Lab. 412, Rahim Bakhsh and another v. Gut Muhammad and others P L D 1971 Lab. 746 and Mst. Gut Bibi v. Hanush Gul and another P L D 1976 Pesh. 108.

"There is also a lot of force in the arguments urged on behalf or the petitioner that the provision of Order XVII, rule 2, C. P. C. read with Order IX, could not be invoked in the circumstances of the present case by the learned trial Judge, for the date that was set was a date on which the parties were to file the list of their witnesses and as such it was not a date of bearing. A refer ence to Order XVII, rule will show that the action contemplated by the rule can only be taken "where on any day to which the hear ing of the suit is adjourned, the parties or any of them fail to appear". That there is a distinction between a date fixed for hearing and any other date fixed in the case will stand fully demonstrated if one refers to Order XVII, rule 3 wherein other situations of default have been enumerated. The rule says, "where any party to a suit to whom time has been granted fails to produce his evi dence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may notwithstanding such default proceed to decide the suit forthwith". If every date fixed in a case was to be a date of bearing, quite obviously there was no need for making rule 3 aforementioned."

(vi) Syed Nazir Hussain .Shah v. Allah Ditta 1973 S C M R 103.‑; In the light of principle of law enunciated in the aforementioned case, If am inclined to hold that 5th August, 1984 in his case was not to be construed as "date of hearing" because on that day merely list of wit‑1 nesses was to be submitted which obviously does not constitute step in the proceeding as same could always be filed at any time with the leave of Court before date of hearing and without materially affecting progress in the case. Keeping in view observation in the aforementioned reports, order of dismissal of the suit, dated 5‑8‑1984, is void, consequently sub sequent proceedings recorded in the matter are likewise without lawful authority and of no legal effect.

Thus, in such peculiar situation provision of Order IX, rule 9, C. P. C. for seeking restoration does not apply rather inherent power under sec tion 151, C. P. C. would be attracted for the said purpose. Accordingly period of limitation would be regulated by residuary Article 181 o Limitation Act. In this behalf reliance may also be placed on ,observation in :‑

(i) Sited Qasim Shah v. Deputy Commissioner, Kachhi District and another P L D 1976 Quetta 42.

(it) K. S. Abdul Latif v. The Republic of Pakistan and others P L D 1971 Quetta 77.

(iii) Rehman Weaving Factory, Bahawalnagar v. Industrial Development Bank PLD1981SC21.

5. Evidently there does not exist any factual controversy as regards purpose for which case was fixed on 5 8‑1984 when it was dismissed in default. Therefore, apparently no enquiry is needed for ascertaining whether said date was for "hearing" or not. This being point of law can's be raised at any stage. Objection by other side, is hypertechnical and not well‑conceived. If any authority is needed reference, can be made to the observation in‑

(i) Mansab Ali v. Amir and others P L D 1971 S C 124.

(it) Haji Abdullah Khan and others v. Nisar Muhammad Khan and others P L D 1965 S C 690.

(tit) Mst. Umar Bibi and others v. Bashir Ahmed and others P L D 1968 S C 629. .

6. Besides it has been urged by learned .counsel for respondents that order of dismissal of suit was passed on 5‑8‑1984, whereas application for restoration was filed on 26‑9‑1984, which was thus time‑barred. As observ ed order of dismissal of suit was not warranted because matter was not fixed for effective hearing. Therefore, application under section 151, C. P. C. would not be deemed to be barred by time, besides application discloses justifiable circumstance, preventing them from attending the Court. But at the same time it may be seen that when order dismissing the suit is found to be void then limitation would not run against the F petitioner. Rather subsequent orders shall obviously be out of consi deration. In this behalf I am fortified by the observation in following cases :‑

(i) Sited Muhammad Alam v. Syed Mehdi Hussain and others P L D 1970 Lah. 6.

(ii) Rahim Bakhsh v. Gul Muhammad and others P L D 1971 Lah 746.

(iii) Syed Qasim Shah v. Deputy Commissioner, Kachhi District and another P L D 1976 Quetta 42.

(iv) Faqir Muhammad v. Mulla Mahmood P L D 1973 Quetta 1:

(v) Syed Nazit Hassan v. Settlement Commissioner, Lyallpur and another P L D 1974 Lah. 434.

(vi) Yousuf Ali v. Muhammad Aslam Zia and others P L D 1958 S C 104.

(vii) Khuda Bakhsh v. Khushi Muhammad and others P L D 1976 S C 208.

(viii) Mst. Rehmat Bibi and others v. Pannu Khan and others N L R 1982 S C 166.

Thus, I have no hesitation in holding that bar of limitation as being pleaded on behalf of respondent is not available in the circumstances of this case.

For the foregoing reasons I am inclined to hold that order, date 5‑8‑1984, was without jurisdiction and all subsequent orders in consequence. thereof passed by the Courts below are without lawful authority and o not legal effect, same are accordingly directed to be set aside. Case will be remanded to learned Qazi Bhag for adjudication on merits.

Parties are, however, left to bear their own costs.

M. Y. H. Case remanded.

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