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Civil Petition for Special Leave to Appeal No. 500 of 1978, decided on 3rd February, 1986.

(From judgment of the Lahore High Court, Bahawalpur Circuit dated 22‑5‑1978 in F . A . O . No. 16‑62 / BWP) .

Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185(3)‑‑Civil Procedure Code ( ' of 1908), 0. IX, R.8‑ Petitioner's suit for recovery dismissed for non‑prosecution‑‑Contention of petitioner that date on which suit was dismissed was fixed‑for purposes other than hearing as envisaged in 0. IX, R.8, Civil Procedure Code requiring consideration‑‑Leave to appeal granted.

Syed Nazir Hussain Shah v . Allah Ditta 1973 S C M R 103; Muhammad Swaleh v. Messrs United Grain and Fodder Agencies P L D 1964 S C 97; Ibrahim v. Niaz Ali 1983 C L C 1061; Ghulam Sakina v. Karim Bakhsh P L D 1970 Lah. 412; Messrs Ghulam Farid Muhammad Latif v. Central Bank of India Limited, Lahore P L D 1954 Lah. 575; Mst. Barkat Bibi v. Fateh Ali P L D 1949 Lah. 432; Grimault & Co. v. Charan Das & Sons A I R 1934 Lah. 237 and Abdul Shakoor Haji Aminuddin v. Miss Mumtaz P L D 1961 (W.P) Kar. 145 ref.

Muhammad Yaqub Khan, Advocate Supreme Court with Ch. M.Z. Khalil Advocate‑on‑Record for Petitioner.

Sh. Abdul Rehman, Advocate for Respondent No.2.

Date of hearing: 3rd February, 1986.

Leave to appeal has been sought from judgment, dated 22nd of May, 1978 of the Lahore High Court; whereby an F.A.O., was dismissed.

Brief facts given by the learned counsel are that the petitioner's suit for recovery of nearly 3/4 crore rupees was dismissed by the trial Court in default. An application before the trial Court for restoration of the suit was dismissed. The first appeal against the order of refusal of restoration of the suit having been dismissed by the High Court, the petitioner Bank has now sought leave to appeal.

2. Learned counsel, inter alia, contended that the date on which the suit was dismissed for non‑prosecution i.e. 25th of March, 1959 was not fixed for "hearing" therefore, the suit could not have been dismissed for default under Order IX, Rule 8. He has relied on the order passed on 5th of March, 1959, whereby the case was adjourned to 25th of March, 1959. It reads as follows:‑

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3. It is apparent from the order, dated 5th March, 1959, that the date on which the suit was dismissed for non‑prosecution i.e. 25^th March, 1959 was fixed for two purposes: Firstly, for the appearance of the respondents (defendants) who were ordered to be summoned and secondly, that if and when they appeared the arguments were to be heard on an application for amendment of the issues made by the present petitioner.

4. Learned counsel for the petitioner has, inter alia, vehemently contended that none of the purposes, mentioned in the order, dated 5th March, 1959 would constitute "hearing" as understood in law without which the suit could not be dismissed in default under Order IX, Rule 8, C.P.C. as was done in this case. He has relied on mass of case law. Some of the cases are:

"Syed Nazir Hussain Shah v. Allah Ditta 1973 SCMR 103; Muhammad Swaleh v. Messrs United Grain and Fodder Agencies P L D 1964 S C 97; Ibrahim v. Niaz Ali 1983 C L C 106;Ghulam Sakina v. Karim Bakhsh P L D 1970 412; Messrs Ghulam Farid Muhammad Latif v. Central Bank of India Limited, Lahore P L D 1954 Lah. 575; Mst. Barkat Bibi v. Fateh Ali PLD 1949 Lah. 432 and Grimault & Co. v. Charan Das & Sons AIR 1934 Lah. 237.

5. Learned counsel for the caveator has also cited a case namely, Abdul Shakoor Haji Aminuddin v. Miss Mumtaz P L D 1961 (W.P.) Kar. 145 which prima facie seems to be distinguishable.

6. The questions raised in this petition require examination. Leave to appeal is accordingly granted. Security Rs.2,000. Appeal shall be made ready on the present record with liberty to the parties to add additional documents, if necessary.

M.Y.H. Leave granted

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