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Writ Petition No.4847 of 1982, decided on 27th February, 1983.
---O.IX. Rr.4, 8 & 9--Suit for pre-emption--Suit dismissed for non -appearance of plaintiff--Restoration of--Trial Court, on remand of case by District Judge, restoring suit for reason that the date fixed was not a date of hearing but for appearance of parties, and that sufficient cause had been shown for the absence of plaintiff-petitioner on such date--District Judge, in revision, dismissing suit--Apparently, as also found by Trial Court, no hearing had to take place on such date and District Judge found, not to have even touched that issue- Order of District Judge, held, was without lawful authority Case remitted to Trial Court to be decided afresh in accordance with law.
---O.IX, Rr.4, 8 &'9--Limitation Act (IX of 1908), Art. 181--Suit dismissed for default in appearance--Application for restoration of suit--Limitation--Date on which plaintiff failed to appear found not to be date of hearing--Limitation in such case, held, would be governed by Art.181, Limitation Act (IX of 1908).
Muhammad Swaleh's case P L D 1964 S C 97 rel.
Ch. Bashir Hussain for Petitioner.
Nemo for Respondents Nos. 1 and 2.
Sh. Muzaffar Ahmed Zafar for Respondent No.3.
Date of hearing: 27th February, 1983.
The petitioner, who is a plaintiff, in a pre-emption suit, challenges the order, dated 20th October, 1982, passed by the learned District Judge, Faisalabad, whereby be accepted the appeal of the of the respondent and dismissed the suit
2. Briefly the facts of this case are that the petitioner, after the case had been fixed for evidence applied to file a fresh list of witnesses, on 1st March 1978. That application was allowed. The respondent No.3, however, filed a revision petition challenging the same before the Additional District Judge. He accepted the revision petition and directed that though no new list could be filed, yet the petitioner be allowed to amend the previous statement. The case then went back to the trial Court which directed issuance of notice to the parties for 15th July, 1979.
3. The learned counsel for the petitioner did not appear on 15th July, 1979, though he had been served. The petitioner also did not appear as no service had been effected on him. The trial Court, however, dismissed the suit for non-prosecution. The application filed by the petitioner for restoration of the case was also dismissed on 14th February, 1980. The petitioner went up in appeal before the District Judge, who accepted the same and sent it back to the trial Court to see, inter-alia, if 15th July, 1979, was a date of hearing.
4. The trial Court framed issues, allowed the parties to adduce evidence and restored the suit vide its order, dated 18th November,' 1981, for the reason that the 15th July, 1979, was not a date of hearing and that sufficient cause had been shown for the absence on that date. A revision petition against that order succeeded as stated above, vide the impugned order and the suit dismissed.
5. It is contended by the learned counsel that as 15th July, 1979, was not a date of hearing and as it had been so decided by the trial Court, the learned District Judge erred in law in upsetting that decision without holding that it was a date of hearing. He has referred to the order passed on 9th June, 1979, when the trial Court had ordered the issuance of notices for the appearance of parties. Apparently no hearing had to take place on that date. This is also the finding of the trial Court in its order, dated 18th November, 1981. The learned District Judge has not even touched that issue. The law is well settled on the point. In this view of the matter, the order of the learned District Judge is without lawful authority.
6. The learned counsel for the respondent contested this petition mainly on the ground that the application for restoration was made beyond 30 days and, therefore, the same could not have been entertained. It is to be noted that if the 15th July, 1979, was not a date of hearing, the limitation of the order of the trial Court would be governed by Article 181 of the Limitation Act. It is supported by the case of Muhammad Swaleh P L D 1964 S C 97. The period in that case will be three years.
In view of the above, the impugned order is declared to be without lawful authority and of no legal effect. The case shall, therefore, go back to the trial Court to be decided afresh in accordance with law, as if the same stood validly restored on 18th November, 1981. There will be no order as to costs.
S.Q./A-80/L Case remanded.
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