MUHAMMAD SHAFIQUE Versus Mst. ZATOON AKHTAR
ORDER
1. GHULAM MUSTAFA MUGHAL, C J.--- This appeal is filed against the judgment and order dated 18-9-2012 passed by the learned Additional District Judge Hajira, whereby an application for restoration of the suit filed on behalf of the appellant, herein, has been dismissed.
2. Muhammad Shafique, appellant herein, filed a suit against the defendants, respondents herein, for recovery of Rs.500,00,000/- in the Court of Additional District Judge Hajira on 14-7-2011. The learned trial Court issued notices to the defendants. On 27-2-2012 defendants appeared through their counsel but nobody was present on behalf of the plaintiff. The learned trial Court dismissed the suit for non-prosecution. The plaintiff/applicant moved an application for restoration of the suit on 6-3-2012 on the ground that on the relevant date i.e. 27-2-2012 the attorney of the plaintiff was not available because he had gone to attend a case before the Revenue Commissioner at Muzaffarabad. The learned Advocate who was representing the plaintiff also could not appear when the suit was called for hearing due to his ailment. It was stated that absence of the plaintiff/applicant in the circumstances was not wilful, therefore, the suit may be restored. The application was contested by the defendants/respondents, herein. They refuted the claim of the plaintiff/appellant. The learned trial Court framed issues in light of the respective pleadings of the parties on 4-4-2012. The parties led evidence pro and contra. After hearing them the learned trial Court vide its judgment and order dated 18-9-2012 dismissed the application, hence, this appeal.
3. Ch. Amjid Ali, the learned counsel appearing for the appellant argued that absence of the plaintiff/appellant on the date when the suit was dismissed was not deliberate and wilful. He further argued that the plaintiff was being represented by Ch. Faqar Din, Advocate and on 27-2-2012 he could not appear before the Court due to his ailment. The learned Advocate submitted that attorney of the plaintiff also could not appear because he had gone to attend a case before the Revenue Commissioner at Muzaffarabad and was under the impression that plaintiff's Advocate will attend the case. He submitted that application was within limitation and facts pleaded therein constitute sufficient cause for restoration of the suit. The learned Advocate contended that law favours adjudication on merits and dismissal of the case on the date which was fixed for filing of written statement was illegal because the same cannot be termed as date of hearing within the ambit of Order IX, rule 8, C.P.C. The learned Advocate placed reliance on the following cases:-
1. Habib Bank Ltd. v. Kh. Muhammad Ishaque PLD 1983 SC (AJ&K) 223; and
2. Muhammad Hussain v. Allah Dad and 13 others PLD 1991 SC 1104
4. Conversely, Sardar Muhammad Riaz Khan, the learned counsel appearing for the respondents controverted the arguments advanced on behalf of the appellant and submitted that no sufficient cause has been shown by the plaintiff/applicant for restoration of the suit, therefore, the order passed by the learned Additional District Judge Hajira is unexceptional and does not suffer from any legal infirmity, hence, is liable to be maintained.
5. I have heard the learned counsel for the parties and gone through the record of the case. The provisions contained in Order IX, Rule 8 govern the controversy for proper appreciation of the matter are reproduced as under:--
6. "Procedure where defendant only appears.---Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder."
7. It may be stated that provisions contained in Order IX, rule 8 of the Code of Civil Procedure are imperative. It is obligatory for the Court when defendant appears and plaintiff does not appear when the suit is called for hearing the suit must be dismissed. However, the suit cannot be dismissed when defendant admitted the claim of the plaintiff wholly or partly. The Court in case of admission is empowered to pass decree on the basis of such admission. The suit cannot be dismissed when presence of the plaintiff was not required and the Court can proceed in the matter despite absence of the plaintiff. The dismissal of the suit on the date which was not fixed for hearing is a nullity in the eye of law. The expression "date of hearing' has not been defined in the Code of Civil Procedure however, the same has been considered by the superior Courts in various judgments. In the case titled Habib Bank Ltd. v. Kh. Muhammad Ishaque reported as [PLD 1983 SC (AJ&K) 223] relied upon by Ch. Amjid Ali, Advocate the ex parte proceedings recorded against the defendant on the date which was not fixed for hearing of the suit were recalled and it was observed that neither ex parte proceedings can be recorded against the defendant nor the suit can be dismissed on the date which was not fixed for hearing of the suit. In para 13 of the judgment, the apex Court concluded as under:-
8. "The word "hearing" it may be observed has been defined now here in the C.P.C. As defined in Wharton's Law Lexicon it means "investigation of a controversy." The word "hearing" therefore, means taking of evidence or consideration of question relating to suit enabling the Judge to come to a final adjudication and not consideration of merely an interlocutory matter. Where the wordings of the order indicate (as the case here is) fixation of date not for hearing but for consideration of merely an interlocutory matter ex parte order against the defendant cannot be passed on such a date and if it is done it being without jurisdiction is a nullity."
9. The proposition was also considered by a full bench of this Court in the case titled Muhammad Din v. Zabardast Khan and another reported as (PLD 1972 AJ&K 7). Mr. Justice Muhammad Yusuf Saraf (as his lordship then was) at page 10 of the report after considering the case-laws, observed as under:--
10. "A perusal of these authorities would show that the word "hearing" has received a restricted meaning perhaps out of the natural anxiety of Courts to ensure that cases are decided on merits. The Code as stated earlier has neither defined the term nor does it at the same time differentiate between a date when say, evidence is to be recorded or arguments are to be heard or issues are to be framed as against those for which, say, the defendants are summoned or the case is otherwise adjourned. In the Code itself every adjourned dated has been termed as a date of hearing. It may be emphasized that the Court has not to hear the plaintiff or the defendant but it has to hear the case. Thus in a sense the coming up of the case before the Court on any adjourned date of hearing cannot be termed anything but its hearing. It was contended that to interpret the word "hearing" in such a way may lead to harsh results but it appears that it is not so because the plaintiff whose suit is dismissed for default is always at liberty to show that his absence was due to sufficient causes and Courts have generally been liberal in enlarging the scope of such causes."
11. The same view has been taken in PLD 1966 AJ&K High Court 10, PLD 1964 SC 97, PLD 1979 Lahore 332, 1991 SCMR 1104 and 1997 SCMR 1365.
12. In Mst. Akhtar Begum's case reported as [1981 CLC 778] it was observed as under:-
13. "It is clear from the aforesaid observations that the words "hearing of the suit" have been used in a definite sense. It refers to determination of questions, which result in final determination of the suit. This includes filing of written statement, recording of evidence, hearing of arguments and rendering judgment."
14. It may be stated that an exact definition of the expression "hearing" cannot be given because date of hearing can be determined only keeping in view the nature of the order in question. In some of the cases it has been opined that a date on which the Court has to examine the judicial record for further progress of the case which includes taking of evidence or consideration of question which leads to the final conclusion i.e. filing of written statement etc. A date fixed for consideration of an interlocutory order, therefore, cannot be termed as date of hearing. In Muhammad Din's case the learned full bench of this Court has mentioned some dates which have not been treated as date of hearing and those are:-
(1) When defendant has not as yet been summoned.(AIR 1943 Pesh. 51);
(2) When the date was fixed for the receipt of a file. (PLD 1964 BJ 8 and PLD 1949 Lah. 432);
(3) When on the date fixed the report of a Commissioner was due. (AIR 1936 Lah. 280);
(4) When on the date fixed the report of a Commissioner is due but has not been received. (AIR 1934 Lah. 56 and 54 IC 568 (Cal.));
(5) When the case is pending reference to arbitration and the arbitrator has applied for extension. (8 IC 224);
(6) When the date in question fixed for filing a list of witnesses but at the same time another date already fixed for evidence. (AIR 1938 Rang. 360);
(7) When in accordance with the arbitration agreement after the receipt of conflicting reports from arbitrators the case has been referred to an umpire. (AIR 1937 Pesh. 49 and AIR 1923 Pat. 115);
(8) When the date was fixed for considering an application moved by defendant for amendment of issues. (AIR 1921 Pat. 96);
(9) When the date fixed is for appointment of guardian ad litem. (AIR 1924 Pat. 714);
(10) Date fixed in the suit for the purpose of awaiting the result of another suit in another Court which had been decided by that time though an application for correction of decree was also pending. (AIR 1946 ALL. 506);
(11) Date fixed for parties to file objections against the Commissioner's report. (AIR 1936 Lah. 759)."
15. Besides the above, the dates on which following orders were to be passed by the Court have also not been treated as date of hearing:--
(1) Date on which an order for deposit of process fees is to be made. [PLD 1987 AJ&K 44 and 1983 CLC 46 (AJ&K)];
(2) Date fixed for issuance of process to defendant 1983 CLC 46.
(3) Date for mere appearance of parties. 1987 CLC 2305, 1986 CLC 1320, PLD 1982 AJ&K 54];
(4) Date for notice to defendant and his counsel to appear and pursue matter PLD 1981 Lah. 508;
(5) Date for filing replication. [1991 MLD 71, 1987 SCMR 733, 1984 CLC 1491, 1980 CLC 1261];
(6) Date for submission of list of witnesses. [PLD 1986 Quetta 121, KLR 1986 CC 447];
(7) When the date was fixed only for nomination of receiver. [PLD 1990 SC 285 = NLR 1990 SCJ 402];
(8) Date for production of documents. [NLR 1988 Civ. 395 and PLJ 1988 Lah. 46`1];
(9) Date for filing amended plaint. [1999 MLD 4535];
(10) Date for filing objections to an application. [1991 MLD 71];
(11) Date for Muzeed Karvai. [1988 MLD 2642];
16. In Muhammad Din's case, supra, the learned full bench of this Court took notice of dismissal of the case in default in routine and at page 13 of the report depreciated such practice. Relevant observation is reproduced as under:--
17. "It goes without emphasis that the ability of the Courts to administer justice is the foundation of the modern State. It is the duty of a Judge to ensure not only that he dispenses justice but what is equally of vital importance, that justice also seems to have been done. The characteristic of a good judgment is that it must be self-evident and self-explanatory; in other words, it must contain the reasons that justify the conclusions arrived at and these reasons should be such that a disinterested reader can find convincing or at least reasonable. The reasoning should not be left to the imagination of the reader for such an order is apt to be termed as arbitrary."
18. In cases as the present one where a grave allegation which if proved, would amount to gross abuse of public, has been brought against a clerk of the Sub-Judge's establishment, it was all the more imperative for the learned Sub-Judge to have exercised his powers of dismissal with greater caution and after fuller consideration because a Judge should be able to inspire confidence. It is not a world of angels. Many a litigants resort to every possible device to achieve success. To them the end justifies the means and when successful, they not relish the means, no matter how immoral or ingenious, but also share their highly coloured version with the general public. Therefore, when an abuse is attributed to an officer of the Court, the Presiding Officer would in our view be failing in his duty if he does not energetically and ruthlessly unearth the truth so that the shadow thus cast on the ability of the administration of justice to uphold the scales of justice evenly, is convincingly dissolved. Should as a result of an impartial enquiry the allegation turn out to be true, the officer at fault ought to suffer the consequences but should the allegation be proved false, the petitioner should be proceeded against in accordance with law."
19. In order to judge as to whether present case has been dismissed on the date of hearing, it is necessary to refer the interim orders passed in the case, which are as follows:--
20. After perusing the interim orders reproduced hereinabove, I am of the view that neither presence of the plaintiff on 27-2-2012 was necessary nor said date was a date of hearing in the captioned case. On 11-2-2012 the Presiding Officer of the Court was on leave. The case was adjourned by the Reader for 26-2-2012. On 26-2-2012 the Court was close due to holiday. The file was placed before the Court on 27-2-2012 which was not a date of hearing, hence, dismissal of the suit on this date was a nullity in the eye of law, therefore, the learned trial Court was bound to restore the suit.
21. In view of above the appeal is accepted and the impugned order dated 18-9-2012 is hereby vacated. The suit stands restored to its original number and the learned Additional District Judge Hajira is directed to proceed with the case in accordance with law.
22. SAK/33/HC(AJ&K) Appeal accepted.