Mst. GHULAM SAKINA AND 6 Other vs KARIM BAKHSH AND 7 Other

Karim Bakhsh and six others brought a suit against Nizam-ud-Din and Haji Ghulam Hussain, now deceased and represented by his legal representatives, Mst. Ghulam Sakina etc., the present petitioners for a declaration that the sale of the shop described in the heading of the plaint was against law. In the course of proceedings, that took place in connection with the suit, the order recorded on 24-1-62 is relevant for our present purposes. The said order is to the following effect:- "Plaintiff No. 1 present. Counsel for defendant No. 2 (Haji Ghulam Hussain), Mr. Muzaffar Hasan present. Defendant No. 1 (Nizam-ud-Din) absent despite service through beat of drum, ex parte against him. Adjourned to 27-1-62 for replication."

On 27-1-62, the following order was passed:--- "Plaintiffs absent. Defendant No. 2 in person along with his counsel, Mr. Muzaffar Ahsan.

Suit against defendant No. 2 is dismissed under Order IX, rule 8 and against defendant No. 1 under Order IX, rule 3, C. P. C."

2. On 4-4-62 an application for restoration of the suit was submitted by the plaintiffs under Order IX, rules 4 and 9 read with section 151, C. P. C. Haji Ghulam Hussain (defendant No. 2), however, contested the same which led to the framing of the following issues:-

(a) Has the petitioner's application been filed within time? O. P.

(b) Is there any reasonable ground for the restoration of the petitioner's suit 2

(c) Relief.

3. The above-mentioned application was disposed of by the learned Senior Civil Judge, Multan.

Taking up issue No. 2 in the first instance, he came to the conclusion that although the perusal of the file showed that the suit was fixed for 27-1-62 and was dismissed on 27-1-62 yet the petitioners were under the impression that the date fixed for hearing in the case was 27-2-62 and this was the date entered in the diary and lafafa of Mian Abdus-Salam, Advocate (R.W.1) who appeared on behalf of the plaintiff and even R. W. 1, the clerk of Mr. Muzaffar Ahsan, Advocate, who appeared for the defendant, admitted in the first instance that the case was adjourned to 27-2-62 but later corrected himself and said that the case was adjourned to 27-1-62. The learned Senior Civil Judge, in this state of the evidence, considered that the absence of the petitioner on 27-1-62 was not deliberate and that reasonable grounds for restoration of the suit did exist. As regards issue No. 1, it was observed that since the application had been made on 4-4-62, the same was beyond time but it was opined that the circumstances of the case were peculiar inasmuch as the petitioner could not know that on 27-1-62, the petitioner's suit was dismissed and he was under the impression that the suit was fixed for hearing on 27-2-62 and that when he did appear in Court on 27-2-62 he found that there was no Presiding Officer present and was told by the Ahmad that notices will be issued for the fresh date. The conclusion drawn was that the plaintiff's could not make the application within 30 days from the date of dismissal in the peculiar circumstances just mentioned and could not be made to suffer on account of limitation. In the result the application of the petitioner was accepted and the suit restored to the file.

4. In this revision petition Ch. Abdul Rahman, Advocate, has contended that section 5 of the Limitation Act has not been made applicable by any enactment or rule to an application under Order IX, rule 9 of the C. P. C. And, therefore, the Court had no jurisdiction to admit the application after the period of limitation had expired. He further urges that if an application to set aside a dismissal for default under Order IX, rule 9. C. P. C. Is made after the period prescribed for making such application has expired, even the inherent jurisdiction of the Court cannot be invoked to set aside the dismissal. A large number of rulings are cited in support of these submissions, namely, Mahadeo Govind Wadkar v. Y. Lakshminarayan Ramnath Marwadi (AIR 1925 Bom. 521), Madha Ram Gaonbura v. Mst. Tupoo Rubhani etc. (AIR 1931 Cal. 319), Mst. Karam Bhari v. Jagan Nath (AIR 1936 Lab. 495), Karai Chinnappa Naidu v. B. K. Deenadayalu Naidu (AIR 1948 Mad. 480), E. C.

Deeruze v. Messrs L. T. Pitta (147 I C 179) and Mohan Lal v. Sher Muhammad Khan (93 I C 1023).

5. I agree that if the present case was one merely of the restoration of a suit dismissed in default by means of an' application which is barred by time, the contention of the learned counsel for the present petitioners would have to prevail. The real question, however, appears to be different that is whether at the stage of proceedings reached on 24-1-62 it can be held that the suit was called for hearing on the next date i.e. 27-1-62 and whether the absence of the plaintiffs on the said date can entail the dismissal of their suit? The provision in question viz. Order IX, rule 8, C. P. C. Lays down that "where the defendant appears and the plaintiff' does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed . . . . ." The question which requires consideration is as to whether on 27-1-62, the case was fixed for the hearing of the suit, because the Court can only dismiss a suit on a date which is fixed for "hearing of the suit" and not on a date which is fixed only for the purpose of determining some interlocutory matter for future conduct of the suit.

6. The true import of the expression "hearing of the suit" has been elaborately discussed in Ghulam Farid Muhammad Latif v. The Central Bank of India Ltd., Lahore (PLD 1954 Lah. 575). A perusal of this authority and the cases cited therein reveals that in cases where it was not intended that there should be a 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 tot he determination of the suit considered, but is merely for some interlocutory matter to be decided between the parties as to the future conduct of the suit, the provisions of Order IX, rule 8, C. P. C. Are not attracted. In the present case, as already noticed above, the plaintiff was required to file his replication. The date fixed in this connection namely, 27-1-62 cannot be regarded as a date fixed for the "hearing of the suit". Consequently the absence of the plaintiffs on this date could not result in the dismissal of their suit and an order of dismissal for default in the above circumstances is an order without jurisdiction and a nullity and can be set aside by an application under section 151, C. P. C.

7. Moreover, in the exercise of its revisional jurisdiction, this Court is not bound to interfere in every case even if the order of the lower Court is wrong. The exercise of the revisional jurisdiction is discretionary and is not to be resorted to when substantial justice bad been done between the parties. Vide Hari Singh v. Khan Moin-ud-Din Khan etc. (AIR 1944 Lah. 397). The order passed by the learned Senior Civil Judge, Multan, is eminently a just order and even if the reasons given in support of his decision on issue No. I are not correct, I am not obliged to exercise my revisional jurisdiction so as to perpetuate the unjust if not the illegal order dated 27-1-62, passed by the learned trial Court.

8. In the light of the view that I have taken, this revision cannot succeed and it is hereby dismissed.

Since the plaintiff-respondents have not appeared to oppose this petition, there shall be no order as to costs.