' TALAAT QAYUM QURESHI, J.-The petitioner filed suit for declaration, permanent injunction and for recovery of Rs.77,86,886 in the Court of learned Civil Judge, Peshawar. The said suit was dismissed for non-prosecution vide order dated 27-5-2004. The petitioner filed an application for its restoration on 3-2005 but the said application was dismissed by the learned trial Court vide judgment/order dated 1-10-2005. Feeling aggrieved with the said judgment/order, the petitioner has filed revision petition in hand.
2. Mr. Arshad Zaman Kiyani, Advocate, learned counsel representing the petitioner argued that although the learned .Trial Court had directed the petitioner/ plaintiff to personally appear before the Court but he was not served for the said purposes. The case, it was argued, was fixed for.
Appearance of the petitioner/ plaintiff, attendance of defendant No.l and for filing of written statements on behalf of the defendant No.
2. The Courts below without verifying the fact as to whether the petitioner/plaintiff had been served about the direction to appear personally, dismissed the suit for non-prosecution though the said date was not "date of hearing" and the suit could not be dismissed for nonprosecution.
3. On the other hand Mr. Nizar . Muhammad, Deputy A.-G. Representing respondent No.l. And Mr. Astaghfirullah, Advocate, representing respondent No.2 argued that the suit was dismissed in default on 27-5-2004 whereas application for restoration was filed by the petitioner on 19-3-2005 which was hopelessly barred by time and no application for condonation of delay was filed, therefore, the Court below has rightly dismissed the said application.
4. We have heard the learned for the parties' and perused the record.
5. We admit the revision petition for regular hearing and since a very short question is involved, therefore, we proceed to decide the same on merits.
6. No doubt the learned trial Court vide order dated 8-5-2004 had directed the petitioner/plaintiff to appear in person before the Court and notice was issued in the name of respondent No.l and respondent No.2 was directed to file his written statement for 27-5-2004 on the said date i.e. 27-5- 2004. The learned trial Court did not bother to see as to whether the petitioner/plaintiff had been served with a notice to appear in person. The date, (27-5-2004) was only for attendance of the petitioner/plaintiff as well as respondent/ defendant No.l and for submission of written statements by respondent/defendant No.2, hence the same was not the "date of ^hearing" and the suit could not have been dismissed for non-prosecution.
7. It is worth mentioning that we have carefully perused the record of the learned trial Court but were unable to find out any notice issued in the name of petitioner/ plaintiff for his personal appearance for 27-5-2004. The impugned orcler on the face of it is illegal hence not sustainable.
The revision petition is, therefore, allowed on payment of costs of Rs.5,000. Parties are directed to appear before the learned trial Court on 20-11-2006. Office is also directed to send the record of the case back to the Court concerned.