QAIM ALI KHAN vs MUHAMMAD SIDDIQUE
This civil petition for leave to appeal arose from a pre-emption suit that was dismissed for default under Order IX Rule 8 of the Code of Civil Procedure 1908 when the plaintiff failed to appear on a date fixed solely for filing a replication. The trial court and appellate court refused to restore the suit, but the Lahore High Court allowed the revision petition, holding that a date fixed for filing a replication is not a 'date of hearing' of the suit, and thus the suit could not be dismissed in default for non-appearance on such a date. The Supreme Court of Pakistan affirmed this legal principle, holding that a plaintiff cannot be penalized for absence on a date not fixed for the actual hearing of the suit. Furthermore, the Supreme Court refused to interfere with the High Court's order because the petitioner failed to file all requisite documents, including the relevant remand order, as required by established procedural rules. Consequently, leave to appeal was refused.
- Whether a date fixed solely for the filing of a replication constitutes a 'date of hearing' for the purposes of dismissing a suit for default under Order IX Rule 8 of the Code of Civil Procedure 1908?
- Can a plaintiff's suit be dismissed for non-appearance on a date fixed merely for an interlocutory matter or filing of pleadings rather than the actual hearing of the suit?
- What is the effect of a petitioner's failure to file all requisite and material documents, such as a prior remand order, when seeking leave to appeal before the Supreme Court?
- Order IX Rule 8, Code of Civil Procedure 1908
ORDER
MIAN BURHANUDDIN KHAN, J.--Muhammad Siddique, respondent had filed a suit for possession through pre-emption against Qasim A.I Khan petitioner in the Court of the learned Civil Judge, Ferozewala, District Sheikhupura. The suit was fixed for replication on 7-3-1972 but due to the non- appearance of the respondent, the suit was dismissed under Order I X rule 8 C . P. C , per order, dated 7-3-1973. Respondent filed an application for the restoration of the suit which was dismissed vide order of the learned trial Judge, dated 14-6-1975.
Appeal against the aforesaid order, dated 14-6-1975 was filed before the learned District Judge who remanded the case to the trial Court per order, dated 2-2-1977. The learned Civil Judge, Ferozewala again dismissed the suit vide order, dated 7-11-1978. This order was challenged in appeal before the learned District Judge who dismissed the appeal per order, dated 15-1-1979.
2. Respondent filed civil revision in the Lahore High Court challenging the order of the learned District Judge, which was allowed by a learned Single Judge vide the impugned order, dated 11-12- 1979 on the ground that the date fixed for the filing of replication is not a date of hearing of the suit, and, therefore, the suit cannot be dismissed in default as it was not intended that there should be hearing of the suit in the ordinary sense of the word i.e at which either evidence is to be taken or arguments heard, or questions relating to the determination of the suit, considered but is merely for some interlocutory matter to be decided.
3. We have gone through the impugned judgment of the learned High Court and agree with the observation that if there is a date fixed in a suit which is not for its hearing, the plaintiff cannot be penalized his absence on that date. This observation is according to the settled principles of law.
4. We find that the learned counsel failed to file all the requisite documents for reaching correct approach on the points raised before us. The remand order of the learned District Judge, dated 2- 2-1977 whereby the case was remanded to the trial Court has not been placed on record. As complete documents have not been filed alongwith this petition as laid down by this Court in Noor Khan v. Member, Board of Revenue and others 1984 SCM R 681 we find no reason to interfere with the impugned order. Leave refused. Petition dismissed.
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