ALLAH DITTA vs AZIZ DIN

The petitioner, Allah Ditta, filed a suit against the respondent, Aziz Din, for possession of certain property through pre-emption. In that suit, the Civil Judge, Ferozewala, District Sheikhupura, made an interlocutory order relating to the deposit of ear-e-panjam which, was challenged by the respondent by means of an appeal before the District Judge, Sheikhupura. The appeal was dismissed by the learned District Judge on 3rd May, 19J3. Thereafter, the suit came up before the learned Civil Judge on 19th July, 1973, when learned counsel for the plaintiff (petitioner) was present but the defendant (respondent) or his counsel was not in attendance. It was, therefore, directed by the learned trial Court that notice pairvi (notice for pursuing the matter) shall issue to the defendant and his counsel for 8th September 1973. On 8th September, 1973, the defendant's counsel entered appearance but neither the plaintiff nor his counsel had turned up. The suit was, therefore, dismissed under Order IX, rule 8 of the Code of Civil Procedure. The plaintiff made an application for restoration of the suit but without success. His appeal against the order of the learned trial Court also did not meet with success. He has, therefore, come up in revision to this Court. '

2. Learned counsel for the petitioner contended that on 8th September, 1973 the suit was not fixed for hearing and, therefore, the order of the learned Civil Judge, dismissing the suit in default was void ab initio. He cited Mst. Ghulam Sakina and 6 others v. Karim Bakhsh and 7 others (PLD 1970 Lab. 412) to support his contention.

3. The record of the present case reveals that before the aforesaid appeal was taken to the learned District Judge the parties had filed their pleadings and issues had also been struck, The suit was fixed for 5th February, 1973, for evidence of the plaintiff but before that could be produced, the record was sent to the learned District Judge to enable him to decide the appeal. On receipt of the record from the learned District Judge, it was yet to be re-fixed for evidence when on 8th September, .1973, the suit was dismissed in default. For that date notice pairvi had been issued to the defendant and his learned counsel. It is, therefore, evident that if the parties had appeared before the learned Civil Judge on 8th September, 1.973 he would have fixed a fresh date for evidence which would have certainly been a date for hearing of the case.

4. Similar view was taken in Mst. Barkat BIN and others v. Fateh A.I and others (PLD 1949 Lab. 432). In that case, a suit was at the stage of evidence on certain additional issues when its file was requisitioned by the High Court in connection with a revision petition. On 2nd May, 1946, in the presence of counsel for the parties, an order was made as follows : "The file has not yet been received back from the High Court. Let it be awaited. Let this case be put up on the 29th May, 1946."

On 29th May, 1946, the file had been received but as the parties or their counsel had not turned up when the case was called it was dismissed under Order IX, rule 3 of the Code of Civil Procedure. The order of the trial Court was challenged before High Court by means of a revision petition which was allowed and the order of the trial Court was set aside as being without jurisdiction. In this connection, relevant observations of A. R. Cornelius, J. (as he then was) read as under : "The expression `hearing' is defined in Wharton's Law Lexicon as 'investigation of a controversy'. It is quite clear that on the 29th May, 1946, no investigation of any matter germane to the suit fell to be performed by the trial Court in this case. The oily order which it could possibly have made was an order of an administrative nature. I may note here that on at least two earlier dates namely the 21st February, 1946 and the 3rd April, 1946, the Court had adjourned the case to await receipt of the record from the High Court in the absence of the plaintiffs and their counsel. Since upon receipt of the record, an administrative order for the further conduct of the suit still had to be made, the mere fact that on the 29th May, 1946, the file had been received does not serve to differentiate that date in any relevant sense from the earlier dates on which there had been default of appearance on the part of the plaintiffs.

Holding that the order dismissing the suit was without jurisdiction, since there was no hearing of the suit on the date on which default of appearance was made, I allow this petition and setting aside the order, return the suit to the trial Court for disposal according to law."

5. In Rahim Bakhsh and another v. Gut Muhammad and 2 others (PLD 1971 Lab. 746) it was ruled by K. E. Chauhan. J. (now a Judge of the Supreme Court) that if a suit is dismissed on a date not fixed for its hearing, the order of its dismissal is void ab initio and a nullity. Similar opinion was expressed by this Court in the case of Mst. Ghulam Sakina and 6 others relied upon by learned counsel for the petitioner, and in another case reported as Muhammad Siddique v. Oaim A.I Khan (1980 CLC 1261).

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 the 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 eye of law. In this view of the matter, the order of the learned trial Court as well as the order of the learned appellant Court, by which the order of the trial Court had been upheld, cannot be sustained. '

7. As a result, I accept this petition, set 'aside the aforesaid orders of the two Courts below and remand the suit to the Civil Judge, Ferozewala, District Sheikhupura; with the direction that he shall hear and decide it again in accordance with law. There shall be no order as to costs.