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Constitutional Petition No. D-32 of 1987, decided on 9th February, 1987.

---O.XVII, R.2--Limitation Act (IX of 1908), Arts.163 & 181- Restoration of suit dismissed on adjourned date of hearing for non appearance of parties--Suit was restored on application of plaintiff for restoration of suit filed after 32 days of its dismissal--Limitation period for filing application for restoration of suit, held, would be governed under Art.181 of Limitation Act providing period of 3 years and not under Art.163 providing period of 30 days--Application filed after 32 days of dismissal of suit was not time-barred in circumstances.

A I R 1949 S C 26; P L D 1981 S C 21; P L D 1980 129 and PLD 1971 Quetta 77 ref.

---O.XVII, R.2--Dismissal of suit--Restoration of--Application for restoration of suit filed without affidavit--Effect--Objection in that respect raised on behalf of opposing party, held, was merely a technical objection based on Rules--Procedure in respect of such a technical defect should not be allowed to deprive party of a relief if he was otherwise entitled.

---O.XVII, R.2--Dismissal of suit--Restoration of--Where suit was dismissed in absence of opposite party such suit, held, could be restored also in his absence--Objection on part of opposite party that no notice was given to him, before restoration of suit was not well-founded as no vested right had accrued to him in that respect.

S. Abbas Zia for Petitioner.

Rahmat Elahi for Respondents.

Date of hearing: 9th February, 1987.

The petitioner has called into question the orders of IVth Senior Civil Judge South Karachi, dated 9-10-1986, restoring the Suit No.1394/85 and the order in Revision passed by IVth Additional District Judge South Karachi, dismissing the revision application of the petitioner.

Relevant facts are that the said suit was at the stage of evidence of defendant/petitioner. It was wrongly fixed for petitioner s evidence on 5-9-1986, which happened to be Friday. Following Saturday was declared Holiday and hence suit was taken up on 7-9-1986 as provided under rule 4 of Order XVII. None was present on that day and hence suit was dismissed for non-prosecution.

Respondent No.3 plaintiff moved the restoration of the suit on 9-10-1986, on the ground that he had come to know of the dismissal of the suit only on 8-10-1986 as his counsel was informed by the clerk that the suit had been adjourned to 8-10-1986. The Civil Judge restored the suit without any notice to petitioner, in spite of the fact that the application for restoration was not accompanied by affidavit. The petitioner moved for revisional Court and the Additional District Judge dismissed the same.

Syed Abbas Zia learned counsel for the petitioner challenged the order of restoration to be without lawful authority. His submission was that application made on 9-10-1985 was barred by Art.163 of Limitations Act as it was made after 30 days of order of dismissal of suit on 7-9-1986, and that revisional Court has taken wrong view of law by counting the time from date of knowledge of dismissal and not from the date of dismissal. But difficulty for the petitioner is that the order is not passed under Order IX, rule 3, C.P.C. which is applicable only to the first appearance by the parties in the suit as held in A I R 1949 S.26 (27) and P L D 1981 S C 21 and on the other hand it could be regarded as an order a/s 151 of C.P.C. But 5-9-1986 was not the first date of hearing. The same was date which had been given after the evidence of the plaintiff had been recorded. The matter had come before, 5-9-1986 being Friday and 6-9-1986 being closed holiday, matter was put up on 7-9-1986 for hearing when none was present. It was therefore, an adjourned date of hearing and it was covered by Order XVII, rule 2, C.P.C. This rule provides that in case of absence of parties on adjourned date of hearing the court may either proceed under provision of Order. IX, or make such other order as it thinks fit.

Therefor, the Civil Judge had two options on 7-9-1986 in view of absence of both parties. He could proceed under provision of Order IX, C.P.C. But we have seen that rule 3 of Order IX, is not applicable to adjourned hearing. Then there is rule 8 available. But this rule could not be applied as it is applicable when the defendant is present and plaintiff is not present. Hence, there is no provision of Order IX, under which the court could proceed. Obvious result is that it proceeded under Order XVII, rule 2 and in its discretion it dismissed the suit. Although in all fairness to the plaintiff the suit should not have been dismissed as the hearing was for evidence of defendant. The suit should have been adjourned as held in P L D 1980 L 129 (130). However, the court could make the order which it did and dismissed the suit.

Once the Court had proceeded under Order XVII, rule 2, C.P.C. then it had the inherent jurisdiction to set aside the order under section 151, C.P.C. and limitation for making such application is 3 years under residuary Article 181 of Limitation Act as held in P L D 1971 Quetta 77 by Mr. Justice Dorab Petal, as he then was. Obvious result, therefore, is that application for restoration made on 9-10-1986 after 32 days of dismissal of suit was not time-barred and hence the Civil Judge had the jurisdiction and competence to grant the said application.

The objection that there was no affidavit accompanying the application for restoration is merely a technical objection based on Civil Court rules. The procedure in respect of such a technical defect should not be allowed to deprive the party of a relief if he was otherwise entitled. The Court rightly exercised the discretion of restoration as it was basically the defendant who had to produce his evidence on that day and not the plaintiff.

The objection that no notice was given to petitioner, before restoration is not well founded as the suit had been dismissed in the absence of the petitioner and hence it could be restored also in his C absence. No vested right had accrued to petitioner in this respect.

The submission that 6-12-1986 was only fixed for hearing of stay application and not for hearing of main revision application is again a mere matter of form as we find that the learned Additional District Judge has considered the various contentions of the parties on the merits of the case. There is, therefore, no force in this submission.

We do not find any injustice having been done to the petitioner or any illegality committed. We had, therefore dismissed this petition on 4-2-1987 by a short order for these reasons.

M.B.T. / Y-8 / K Petition dismissed.

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