BANK OF BAHAWALPUR Ltd. (Now National Bank Of Pakistan) vs BAHAWALPUR COTTON COMPANY And Other
This petition for leave to appeal arises from a judgment of the Lahore High Court dismissing a First Appeal from Order, which had upheld the dismissal of the petitioner bank's suit for recovery of approximately three-quarters of a crore rupees in default. The core legal question is whether a date fixed merely for the appearance of summoned defendants and potential arguments on an amendment application constitutes a 'hearing' for the purposes of dismissing a suit in default under Order IX Rule 8 of the Code of Civil Procedure. The Supreme Court held that the contentions raised regarding the proper interpretation of 'hearing' require detailed examination. Consequently, the Court granted leave to appeal to examine whether the dismissal of the suit for non-prosecution was legally sustainable under the cited provision. The key principle laid down is that a date set only for procedural steps such as service of defendants and preliminary arguments does not necessarily constitute a date of hearing warranting penal dismissal for default.
- Whether a date fixed for the appearance of summoned defendants and arguments on an amendment application constitutes a 'hearing' under Order IX Rule 8 of the Code of Civil Procedure 1908?
- Can a suit be validly dismissed in default under Order IX Rule 8 of the Code of Civil Procedure 1908 on a date not fixed for hearing?
- Order IX Rule 8, Code of Civil Procedure 1908
ORDER
MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought from judgment, dated 22nd of May, 1978 of the Lahore High Court; whereby an F.A.O., was dismissed.
Brief facts given by the learned counsel are that the petitioner's suit for recovery of nearly 3/4 crore rupees was dismissed by the trial Court in default. An application before the trial Court for restoration of the suit was dismissed. The first appeal against the order of refusal of restoration of the suit having been dismissed by the High Court, the petitioner Bank has now sought leave to appeal.
2. Learned counsel, inter alia, contended that the date on which the suit was dismissed for non- prosecution i.e. 25th of March, 1959 was not fixed for "hearing" therefore, the suit could not have been dismissed for default under Order IX, Rule 8. He has relied on the order passed on 5th of March, 1959, whereby the case was adjourned to 25th of March, 1959. It reads as follows:-
3. It is apparent from the order, dated 5th March, 1959, that the date on which the suit was dismissed for non-prosecution i.e. 25 March, 1959 was fixed for two purposes: Firstly, for the appearance of the respondents (defendants) who were ordered to be summoned and secondly, that if and when they appeared the arguments were to be heard on an application for amendment of the issues made by the present petitioner.
4. Learned counsel for the petitioner has, inter alia, vehemently contended that none of the purposes, mentioned in the order, dated 5th March, 1959 would constitute "hearing" as understood in law without which the suit could not be dismissed in default under Order IX, Rule 8, C.P.C. As was done in this case. He has relied on mass of case law. Some of the cases are:--th "Syed Nazir Hussain Shah v. Allah Ditta 1973 SCMR 103; Muhammad Swaleh v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97; Ibrahim v. Niaz Ali 1983 CLC 106;Ghulam Sakina v. Karim Bakhsh PLD 1970 412; Messrs Ghulam Farid Muhammad Latif v. Central Bank of India Limited, Lahore PLD 1954 Lah. 575; Mst. Barkat Bibi v. Fateh Ali PLD 1949 Lah. 432 and Grimault & Co. v. Charan Das & Sons AIR 1934 Lah. 237.
5. Learned counsel for the caveator has also cited a case namely, Abdul Shakoor Haji Aminuddin v.
Miss Mumtaz PLD 1961 (W.P.) Kar. 145 which prima facie seems to be distinguishable.
6. The questions raised in this petition require examination. Leave to appeal is accordingly granted.
Security Rs.2,000. Appeal shall be made ready on the present record with liberty to the parties to add additional documents, if necessary.