MUHAMMAD TARIQ Versus HASIN JAHAN

SAAD SAOOD JAN, J‑‑‑ This is an appeal by special leave from the judgment dated 24‑9‑1989 of the Lahore High Court dismissing the revision petition preferred by the appellant from the judgment of the Additional District Judge, Multan.

2. The parties are residents of Karachi. On 17‑1‑1985 the appellant filed a suit in the Court of the Civil Judge at Shuja Abad claiming, inter alia, a half share in the property formerly owned by his maternal grandfather, Qazi Fariduddin, who had disappeared more than five years earlier. Together with the plaint he also filed an application for the grant of temporary injunction to restrain the respondents from alienating the property in dispute. The respondents filed a written statement on 7‑5‑1985 and thereafter the proceedings in the suit were adjourned on many occasions for one reason or the other. The Court fixed 27‑3‑1986 as the date for hearing arguments on the application for temporary injunction. On that day the appellant and his counsel did not appear before the Court. The learned Civil Judge dismissed the suit for want of prosecution. On 25‑1‑1987 the appellant applied for the restoration of the suit. His application was dismissed on 12‑2‑1987 when he failed to deposit the requisite charges for issuing a notice in a newspaper. On 12‑2‑1987 he moved another application for the same purpose but that too was dismissed on the same ground on 15‑6‑1987. He made a third application for the restoration of the earlier applications. The learned Civil Judge dismissed it on 22‑2‑1988 holding that appellant had not been vigilant enough to pursue his cause. He filed an appeal before the Additional District Judge wherein, inter alia, he called in question the legality of the order of 27‑3‑1986 of the trial Court by which his suit was dismissed. The learned Additional District Judge dismissed the appeal with the finding that during the proceedings he had been careless and negligent. The appellant filed a revision petition in the High Court. Even though the learned Single Judge who heard the revision petition found that on 27‑3‑1986 the suit was fixed for hearing arguments on the application for the grant of temporary injunction only yet he dismissed the revision petition as without any merit.

3. Leave to appeal was granted to the appellant with the following observations:‑‑

"The only question involved in this case is whether the date on which the application for grant of ad interim injunction coming for disposal is considered the date of hearing of the suit within the meaning of Order IX, rule 8 of the C.P.C, and, as such if the Court is competent to dismiss the suit for non‑prosecution on that date, and if the answer is in the negative, whether the trial Court is not bound to restore the suit of the plaintiff when an application for the restoration of the suit under Order IX, rule 9, C.P.C. made on the ground that the date was not fixed for hearing of the suit when the suit is dismissed, is the question which needs further consideration of this Court:'

It seems difficult to support the order dated 27‑3‑1986 of the trial Court and the orders of the Additional District Judge and the High Court. A perusal of the record indicates that the suit of the appellant was dismissed on a day which was not fixed for its hearing; it was a day appointed for hearing arguments on the application for temporary injunction filed by the appellant. In the absence of the appellant all that the learned trial Judge could do was to dismiss the application for temporary injunction. It could not proceed beyond that and dismiss the suit as well. Quite clearly its order in this regard was without jurisdiction and void. This aspect of the case was noticed neither by the learned Additional District Judge nor by the High Court. The order of dismissal being void all that the appellant was required to do was to call upon the learned trial Court to treat his suit as still pending. We would therefore accept this appeal, set aside the orders of the three Courts below and direct that the suit of the appellant should be treated as still pending and disposed of in accordance with law. The costs in this appeal shall abide by the final event.

AA./M‑1784/S Case remanded.