FAZAL ARMED Versus ABRAR HUSSAIN

ORDER

The petition is addressed against the order of learned Sub‑Judge, Kotli, passed on October 21, 1991, whereby the order of dismissal of suit for want of prosecution, passed on February 12,1991, was set aside.

2. Fazal Ahmed and another brought a suit for declaration and possession of the suit property, by setting aside the gift deed executed on November 8,1967, sale‑deeds executed on January 18,1977, February 12, 1976, November 9, 1978 and December 3, 1981. The defendant‑respondents were directed to lead their evidence in support of their respective claim. As no evidence was led on their behalf despite availing 7 opportunities, the suit was dismissed on January 29, 1985. This order was challenged in appeal before the learned District Judge where the appeal was accepted and the order of Sub Judge was set aside, on January 30, 1990. The order of learned District Judge was challenged in second appeal before this Court. The impugned order was reversed and the case was remanded to the learned Sub‑Judge for its disposal. The parties were directed to appear before the trial Court on December 10, 1990.

3. It was observed that as some of the issues were to be proved by the defendant‑respondents, as such they may also be allowed opportunity to lead their evidence if they so desired and then the case should be disposed of under law, without providing further opportunity of evidence to the plaintiffs. The file was received back in the trial Court on December 12, 1990. Parties were summoned to appear on January 12, 1991. The learned counsel for the parties appeared on that day and the case was adjourned to January 20, 1991. Again, it was adjourned to February 5, 1991. That day being closed day, the file was taken up on February 6. On that day, the learned counsel for the defendants made statement whereby evidence of the defendants was closed and the case was adjourned for arguments on merits, to February 12, 1991. On that day, the case was called many times but no one appeared on behalf of the parties, as such it was dismissed for want of prosecution.

4. On February' 13, an application was moved on behalf of the defendants for restoration of the suit and its disposal on merits. Notice was issued to the plaintiffs who opposed the application for restoration as it was an exclusive right of the plaintiffs to seek restoration and not that of the defendants. The application was accepted in exercise of powers of review and the file was restored vide the impugned order.

5. It is contended by the learned counsel for the petitioner that on dismissal of the suit for want of prosecution the remedy of restoration was to be availed by the plaintiffs alone and not by the defendants. As the impugned order was passed on the application for restoration, of the defendants, it was a bad order in law, necessitating intervention of this Court. Malik Muhammad Yusuf, the learned counsel for the respondents supported the impugned order and emphasised that the suit was to the disposed of on merits irrespective of absence of the plaintiffs, in the light of the judgment of this Court. Moreover, it was argued that in case the suit was not disposed of on merits by the trial Court, it shall allow the plaintiffs to bring a fresh suit on the same cause of action, resulting in harassment and detriment to the interest of the defendants.

6. The relevant provisions of law applicable to such situation are postulated under Order 17, Rule 2 and Order 9, Rule 3, C.P.C. Order 17, Rule 2 postulates that where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf vide Order 9 or make such other order as it thinks fit. The term "hearing of the suit" has been construed as a stage effective and germane to progress of the matter. It includes determination of questions resulting in final disposal of the suit, examination of plaintiff to enable the Court to frame issues, filing of written statement, hearing of arguments and rendering of judgment. In the present case, the proceedings were at the final stage of hearing of the arguments, to render the final judgment. It was thus, a stage which fell within the ambit of the term "hearing of the suit".

7. Rule 3 of Order 9, provides that where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed. So far and so forth, both the parties agreed that action of the Court was not violative of law. Malik Muhammad Yusuf, the learned counsel for the respondents, has taken an exception to the rule in the light of the order of this Court. It was suggested that once this Court directed that the suit may be disposed of on merits, the trial Court should have done so instead of dismissing it for want of prosecution.

8. A persual of the order of this Court passed on November 25, 1990, reflects that the trial Court was directed to dispose of the matter as required by law. There was no mandatory direction that the Court must decide the case on merits irrespective of the fact that the parties or either of them appeared to prosecute the matter or not. Reference in the order of this Court to decide the case under law, obviously, empowered the Court to dispose of the case in the light of the provisions of law applicable at the relevant stage. Therefore, dismissal of the suit under Order 17, Rule 2, read with Order 9, Rule 3 of the Code is not derogatory to the discretion of the Court.

9. It is interesting to note that instead of the plaintiffs, an application for restoration of the suit was filed by the defendants. The rules of procedure laid down under the Code do not empower the defendants to seek restoration of suit for its disposal on merits. The provisions of Rule 4 of Order 9, relevant to 8 the proposition under consideration, provide that the plaintiff may apply for restoration of the suit and if he satisfies the Court that there was sufficient cause for his absence on the date of hearing, the Court may set aside the order of dismissal and appoint a day of proceeding with the suit. The contention of the learned counsel for the petitioner finds full support from the aforesaid provisions of law.

10. The point raised in the petition and canvassed in the arguments by the learned counsel for the petitioner is, therefore, sustained. The petition is accepted and the impugned order is set aside.

K.BA./497/H.CA Petition accepted