RAHEM BUX AND ANOTHER vs GUL MUHAMMAD AND 2 OTHERS

24th of July 1963 was the date fixed for filing of the written-statement by the defendants. On that date, written-statement was not filed and the case was adjourned to the 30th of September 1963.

However, the case was taken up on 26-7-63 and was dismissed in default. The plaintiffs appeared on 30-9-63 (which according to them was the date fixed for the case), but learned that the suit had been dismissed in default on 26-7-1963. They therefore, filed an application on the same day, i,e,, 30-9-1963 for restoration of the suit pleading that the actual date given to them was 30-9-1063 and not 26-7-1963. This contention was denied by the defendants and the parties led their evidence on the matter. Malik Muhammad Hussain counsel for the plaintiffs appeared as a witness and deposed that the next date given in the case was 30-9-1963 and not 26-7-1963. Masood Alam Clerk of the counsel for the defendants also appeared as a witness and produced the diary of his master. According to wnich the next date of the hearing of the case was 30-9-63. Believing this evidence, the learned Civil Judge has recorded a finding that the actual date fixed in the case was 30-9-1963 and the date noted in the order-sheet as 26-7-63 was not correct. After giving this finding, the learned Civil Judge has restored the suit. The defendants have come up in revision against the aforesaid order.

2. The first point argued by the learned counsel for the defendants-petitioners was that according to Article 163 of the Limitation Act, the period prescribed for filing a restoration application is thirty days. According to him, the application filed on 30-9-1963 for restoration of a suit which had been dismissed in default on 26-7-1963 was time-barred and from that point of view the learned Civil Judge had no jurisdiction to restore the suit. The contention, as put forward, cannot be accepted.

Under Order XVII, rule 1 of the Code of Civil Procedure, the Court may, if sufficient cause is shown, at any stage of the suit, grant time to the parties or to any of them and may from time to time adjourn the hearing of the suit. Acting within this provision of law, the Court granted time to the defendants to file a written-statement. The sole question is as to what was the date which was fixed in the case. The finding of the learned Civil Judge being that the actual date was 30-9-1963 and not 26- 7-1963 it would appear that the dismissal on 26-7-63 had occasioned due to (to put generally)-- the fault of the Court itself. It would thus appear that 26-7-1963 was not "the date of hearing" fixed in the case. From that point of view, the dismissal of the suit on the said date was ab initio void and without jurisdiction. It is well settled that no period of limitation runs against void orders, which are nullity in the eye of law. Reference may be made to Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies and Khushi Muhammad v. Shaha etc . Even otherwise it is an established principle of law that acts of Court should not prejudice any party. The Court in such context includes the Court itself and its officers and the staff. In the instant case, it has been found by the learned Civil Judge that the date 26-7-63 had been wrongly written in the order-sheet by the Reader. The argument of the learned counsel for the defendants was confined to Order IX, rule 9, C. P. C. It is, however, to be pointed out that Order IX, rule 9 applies where the dismissal is under Order IX, rule 8, namely, on a date fixed for "hearing" of the case. But where the case is dismissed on a date which was not fixed for its "hearing", then the initial order of dismissal is not under Order 1X, rule 8, C. P. C. In section 151 of the Code of Civil Procedure, it is written, "nothing in this Code shall be deemed to limit or otherwise affect the inherent power of Court to make such order as may be necessary for the ends of justice or to prevent abuse of the process of the Court". The facts of this case speaking point out that there was an abuse of the process of the Court in noting down a wrong date in the order-sheet and to advance the ends of justice, it was just and fair to restore the suit. Learned counsel argued that the civil Court has no inherent power to restore a suit dismissed in default and the only provision for restoration is Order IX, rule 9, C. P. C. As I have already indicated, Order IX, rule 9 applies where a suit has been dismissed on a date of "hearing" but in cases where it has been dismissed on a date which was not fixed for its "hearing", there Order IX, rule 9 has no application and resort can be made to the provisions of section 151, C. P. C.

3. The order of the learned Civil Judge being substantially fair surprising to do justice between the parties, I am not inclined to exercise my discretionary jurisdiction under section 115 of the Code of Civil Procedure in a case of present type where the officials of the Court themselves were to be blamed for noting a wrong date in the order-sheet.

4. The revision petition is dismissed with costs. PLD 1964 SC 97 PLD 1967 Lah. 151