' JAVED IQBAL, J.--- The above captioned petitions for leave to appeal are directed against the order dated 30-12-2003 whereby the civil revision petitions preferred on behalf of petitioner has been dismissed and order, dated 20-11-2003 passed by learned Civil Judge, Chunian whereby two suits filed by the respondent were restored have been kept intact.
2. Precisely stated the facts of the case are that the respondent filed two suits one for specific performance of an agreement to sell and second for declaration seeking annulment of gift which were dismissed for non-prosecution by means of order, dated 29-5-2001. "A short factual background of the case is that the respondent filed two suits, one for specific performance of an agreement to sell dated 1-8-1991 regarding land measuring 336 Kanals one Marla, agreed to be sold for Rs,38,00,000 and the other for declaration, challenging gift of land subject of agreement to sell in favor of petitioner No,2. Both these suits were contested by the petitioners and after consolidation, issues were framed, jointly. It so happened that cases were transferred from the Court where those were pending and in the transferee Court, the respondent/plaintiff did not appear for a number of dates and ultimately the trial Court vide its order dated 5-5-2001 directed notice to the respondent/plaintiff to follow the suits and adjourned these cases to 29-5-2001. On the adjourned date, the respondent/plaintiff again did not appear and his suits were dismissed on account of non-prosecution by him or anybody else on his behalf". Respondent being aggrieved preferred an appeal under section 151, C.P.C. Assailing the order, dated 29-5-2001 whereby the suits were dismissed for non-prosecution which was contested by the petitioner. The suits were, however, restored vide order, dated 20-11-2003 against which two revision petitions were filed by the petitioner but dismissed by the learned Lahore High Court by means of order impugned, hence this petition.
3. Mr. M. Bilal, learned senior Advocate Supreme Court entered appearance on behalf of petitioner and mainly contended that the provisions as contained in section 151, C.P.C. Have been misconstrued and misinterpreted as no application for restoration of suits could have been moved under it and it was so done to avoid the provisions as contained in Article 163 of the Limitation with a mala fide intention and the judgment impugned is liable to be set aside on this score alone. It is also pointed out that the learned High Court has erred while holding that the date on which the suits were dismissed was not a date of hearing and therefore, application could have been moved under section 151, C.P.C. Because the provisions as contained in Order IX, rule 8, C.P.C. Would not be applicable by ignoring that default was committed under section 24-A, C.P.C. And notice was also issued to the respondent which was duly served and therefore, the suits were rightly dismissed under Order IX, rule 8, C.P.C. It is urged with vehemence that the question of fresh notice for summoning the respondent under section 24-A(2), C.P.C. After the transfer of trial Court by learned District Court does not arise as the same was made in the presence of both the parties and therefore, respondent should have been vigilant. It is contended emphatically that order dated 24- 3-2001 passed by learned Civil Judge is free from any ambiguity whereby specific date i,e, 26-3- 2001 was mentioned in the presence of learned counsel for the parties which aspect of the matter has been ignored by the Courts below without reasonable justification. It is further argued that the powers as conferred upon learned High Court under section 151, C.P.C. Are limited and no interference could be made where no question of misreading or non-reading of evidence and glaring irregularity or illegality is involved.
4. Kh. M. Farooq, learned senior Advocate Supreme Court entered appearance for respondent and supported the order impugned for the reasons contained therein with the further submission that ouster on technical ground has not been appreciated by the apex Court and it is always considered desirable that such controversies should be dilated upon and decided on merits.
5. We have carefully examined the above contentions in the light of relevant provisions of law, scanned the entire evidence and perused the judgment impugned with care and caution. After having gone through the entire record we are of the view that there are two pivotal questions, which need to be addressed i,e, whether the notice directed to be issued to respondent by means of order dated 15-5-2001 was served and whether the case was fixed for hearing as contemplated under Order IX, rule 8, C.P.C. Insofar as the service of notice is concerned being question of fact it hardly needs any discussion in view of the conclusion as arrived at by the learned High Court that no such notice was served upon the respondent. In such an eventuality how the two suits could have been dismissed. It is an admitted fact that the suits were dismissed on 29-5-2001, which was fixed for appearance, which cannot be equated to the "date of hearing" and as such suits could not have been dismissed A under Order IX, rule 8, C.P.C. It is worth mentioning that the controversy qua the "date of hearing" has been set at naught by this Court in the case of Manager, Jammu and Kashmir State Property v. Khuda Yar PLD 1975 SC 678 and Qaim Ali Khan v. Muhammad Siddique 1987 SCM R 733. In our considered view the "date of hearing" is something more than that of the "date of appearance" simplicitor and object whereof is to apprise the parties regarding pendency of lis cognizance whereof has been taken and for further steps to be taken and the date fixed for such further steps would be the "date of hearing".
6. The learned Single Judge in Chambers has given valid reasons for restoration of suits in the order impugned. The operative portion whereof is reproduced hereinbelow for ready reference:-- "(8) The respondent had also claimed that his counsel had died and on account of it he could not receive any information regarding proceedings in his suits, besides his assertion that his suits were transferred by the learned District Judge on administrative side, in his absence and he was not aware of pendency of those suits before the Court from where those were dismissed for non- prosecution. Though both these reasons are also plausible and furnished sufficient cause for restoration of the suits yet it is evident from the record that neither the date on which the suits were dismissed was a "date of hearing" nor notices ordered to be issued by the trial Court on the preceding date were served on the respondent, hence, these two reasons were enough for restoration of the suits of the respondent. For these reasons, as well, application for restoration of suits was rightly filed under section 151, C.P.C. And limitation for restoration of suits, was correctly recalled under Article 181 of the Limitation Act, 1908. Superior Courts of this country have repeatedly reprimanded practice of knocking out suits on technical grounds and law has persistently desired decision of cases on merits. The petitioners who themselves were not present on the date when the suits were dismissed for non-prosecution, cannot claim any vested right to be heard at the time of restoration of the suits. No prejudice has been caused to the petitioners by the restoration of the suits, as they have a right to contest both the suits, at their trial. Suit for specific performance involves land measuring 336 Kanals, one Marla alleged to have agreed to be sold for 38 lacs Rupees. Likewise suit for declaration seeks adjudgment of gift in favor of petitioner No,2 of the land subject of agreement to sell and in this manner both these suits involve valuable proprietary rights of the respondent, involving intricate questions of law and facts, of great public importance and have rightly been ordered to be restored and tried on merits, by the trial Court."
' No injustice whatsoever has been done to the petitioner even otherwise ouster on hypertechnical basis is not considered desirable. The petitions being devoid of merits are dismissed and .