' This revision is directed against an order, dated the 24th September, 1978, passed by an Additional District Judge of Lahore 'whereby he dismissed an appeal filed by the petitioner, Muhammad Khan.
The said appeal arises out of a suit brought by the petitioner against the respondents, Jameel Ahmed and another. The suit came up before a Civil Judge on 27th July, 1977 for hearing when neither the plaintiff-petitioner nor his counsel was present and, therefore, it was dismissed in default. The petitioner made an application for restoration of the suit and the learned Civil Judge ordered the restoration of the suit on 6th November, 1977 on payment of Rs, 200 as costs. The costs were, however, not paid on the date fixed for their payment and, therefore the learned Civil Judge again dismissed the suit, vide order dated the 15th December, 1977. It was the last order of the learned trial Court which was challenged by the petitioner by means of an appeal before the learned Additional District Judge.
2. The appeal was dismissed by the learned Additional District Judge on the ground that it was time barred, It was noted by him that although the order impugned before him was passed on 15th December, 1977 yet application for supply of its copy was submitted by the petitioner on 14th January, 1978. The copy was actually delivered to him on 24th April, 1978 but the appeal was filed on 27th April, 1978. The petitioner had made an application under section 5 of the Limitation Act, 1908, which was opposed by the respondents and the learned Additional District Judge declined to condone delay in the filing of the appeal. Feeling aggrieved by the order of the learned Additional District Judge, dismissing his appeal, the petitioner has come up in revision to this Court.
3. Learned counsel for the petitioner contended that the learned Additional District Judge had fallen in error while holding that the appeal was time barred. He pointed out that after the order for restoration of the suit on payment of Rs, 200, as costs, was passed the petitioner filed an application for review of the said order which was dismissed on 29th November, 1977. Then it was on llth December, 1977, that the petitioner made an application for supply of copy of order, dated the 27th July, 1977, by which the suit was dismissed in default, and copy of order dated the 29th November, 1977, whereby the review application was dismissed. The trial Court allowed his application on the same day and it was presented to the Copying Agency on 12th December, 19'7'.
The said copies were however, not supplied to him till the order date 15th December, 1977 was passed by the learned trial Court dismissed the suit for non-payment of costs. Thereafter, in the aforesaid application for supply of copies the petitioner made entry to the effect that he may be supplied copy of order dated 15th December, 1977 also. Admittedly, the copy of order, dated the 15th December, 1977, was supplied to the petitioner on 24th December, 1977 and he filed the said appeal before the learned Additional District Judge on 27th April, 1978. Learned counsel for the petitioner maintained that if the period intervening the date of the making of the said application for supply of copy, namely, 12th December, 1977 and the date when copy of the impugned order was actually delivered to him, that is, 24th December, 1977 was excluded, his appeal before the learned Additional District Judge would be within time.
4. A certified copy of the application for supply of copy made by the petitioner is on the file of the appellate record. In the column in which the details of the copies required is to be given there are two entries which have been scored out. They 'relate to copy of order, dated the 27th October, 1977, and copy of the order dated, the 29th November, 1977. Thereafter, there is a mention of the copy of the order of the 15th December, 1977. The said application for copy was made before order, dated the 15th December, 1977, was passed and there is nothing on the said application to show that it was on 15th December, 1977 volt any other date before the 14th January, 1978 that the petitioner bad made necessary alteration in the application for securing copy of order passed on the 15th December, 1977. The entries on the aforesaid application, however, demonstrate that it was on 14th January, 1978 that the petitioner had asked for copy of order, dated the 15th December, 1977. That the aforesaid application was eventually treated by the Copying Agency as application, dated the 14th January, 1978 is abundantly clear from the following heading given on the certified copy of the said application :- {{URDU TEXT}} Even in his application under section 5 of the Limitation Act, 1908 for condonation of delay the petitioner did not state that he applied for copy of order, dated the 15th December, 1977, on the same date or any other subsequent date prior to 14th January, 1978. The fact that his said application for supply of copies, was initially filed on 12th December, 1978 would not be relevant for the purpose of computing the period of limitation qua the order of 15th December. 1977 because the said order had not been made when the above application was originally filed. In the circumstances, the learned Additional District Judge was perfectly justified in taking the view that the application for supply of copy of order, dated the 15th December, 1977, was made on. 14th January, 1978. It is not disputed that the said copy was ultimately delivered to the petitioner on 24th April, 1978 and the appeal was filed on 27th April, C 1978. It was, therefore, rightly held by the learned appellate Court that the appeal was time barred.
5. It was also urged by the learned counsel for the petitioner that as the order of the learned trial Court, dismissing the suit in default, was void the petitioner could file an appeal at any time. The argument proceeds that since in the suit the learned trial Court had recorded the evidence and the suit was at the stage of arguments when it was dismissed in default the order of its dismissal was void. In this connection, learned counsel for the petitioner placed reliance on Abdullah and another v. Mian Tafazzul Hussain and another (1), Muhammad Haleem and others v. H. H. Muhammad Naim and others (2) and Dhunda v. The Punjab Province (3). It has not been ruled in. Any of these cases that if a suit is dismissed in default at the stage of arguments the order of its dismissal is void. What has been held in the case of Abdullah and another is that it is not essential to hear arguments before deciding a case. The view expressed in the case of Muhammad Haleem and another was that if it is possible for a Court to base his judgment on the evidence already brought on the record, the dismissal of the suit for non-prosecution would be an exception and not a rule. This clearly implies that, in appropriate cases, a. Suit can be dismissed in default even when there is enough material on the record for deciding it on merits. In Dhunda's case it was held that if the plaintiff absents himself from the Court on a date other than the date of first hearing of the suit and it is to be dismissed for non-prosecution, it should be dismissed under Order XVII, rule 2. And not under Order IX, rule 8 of the Code of Civil Procedure. This clearly means that a suit can be dismissed for non-prosecution even when it is ripe for disposal. The cited cases, therefore, do not support the contention of the learned counsel for the petitioner that the order assailed before the learned Additional District Judge was void and, therefore, the petitioner could walk into his Court at any time for seeking redress.
6. The last point canvassed by the learned counsel for the petitioner was that since the learned Additional District Judge had admitted the appeal to a regular hearing he could not subsequently dismiss the same (1) PLD 1961 B J 58 (2) PLD 1969 SC 270 (3) P L 1960 l.4. 786 on the ground of limitation. In this connection, he relied on Syed Faiz All Shah v. Chief Administrator of Auqaf, Lahore
(1) and Hakim Muhammad Zaki v. Rehabilitation Commissioner, Hyderabad and others (2). All these cases are distinguishable on facts. In the case of Syed Faiz All Shah while submitting an appeal before a Division Bench of the High Court, the office had affixed the following note :- "This Letters Patent Appeal is against the order of His Lordship Mr. Justice Anwar-ul-Haq Judge dated 14th July, 1964. It is barred by ten days. It is properly stamped. Copy of order appealed against is attached. Submitted for orders.
(Sd.)
' Mahmood Ahmad, Clerk C. B.
8th October, 1964.
(In Kacha Peshi)
(Sd) 8th October, 1964."
' The order passed by a Division Bench of the erstwhile High Court 'of West Pakistan in view of the above note reads as follows :- "We, however, direct that this appeal 'shall be set down for hearing during the next Circuit. Mr. Bhatti undertakes to take all steps to have his paper book ready and notice served.
(Sd.) Judges."
' The view expressed by their Lordships of the Supreme Court was that the word "however" used by the,;;Division Bench was significant and "suggested" that notwithstanding the office-note, the Court admitted the appeal and directed it to be set down for ,hearing during the next circuit." There is no such indication in the admitting note recorded by the learned Additional District Judge in the case before me. The case of Syed Faiz Ali Shah is, therefore, of no avail to the petitioner. The case of Hakim Muhammad Zaki relates to a writ petition filed against an order passed, in appeal, by a Deputy Rehabilitation Commissioner. One of the contentions raised before the High Court, was that the appeal decided by the Deputy Rehabilitation Commissioner was time barred. No such plea, was raised when the Deputy Rehabilitation Commissioner was seized of the matter. The High Court, therefore, disposed of the contention relating to limitation with the following observations :- "The petitioner contends firstly that the appeal being time-barred the appellate Authority had no jurisdiction. To this it is replied that the objection not having been raised either in appeal or revision, is now too late. I think this reply must prevail for the reason that section 5 of the Limitation Act applies to such appeal (Rule 10 of the Pakistan Rehabilitation Rules, 1951) therefore had the objection been taken, the present respondent would and could have applied for condonation.
Secondly, I can see no reason to suppose that Authority was not satisfied that the petitioner had sufficient cause. I think the presumption of regularity of official acts should be drawn."
(1) PLD 1974 S 17
(2) P j. D 1962 Kar. 285 As against the, in the instant case, the point of limitation was seriously' canvassed before the learned Additional District Judge and agreeing with the respondents, he had held that the appeal of the petitioner was time barred. The petitioner cannot, therefore, make use of the observations recorded in the case of Hakim Muhammad Zaki.
7. There is no merit in this petition. It is, therefore, dismissed with costs.