' This is a revision petition by one Muhammad Siddique against an order whereby his suit against the respondent. Qaim Ali Khan, was dismissed is default.
2. The petitioner's suit was fixed for filing of replication when he failed to enter appearance and, therefore, the Civil Judge, who was seized of the suit, dismissed it for non-prosecution. The petitioner then made an application for restoration of the suit, but without success. Thereafter, he preferred an appeal before an Additional District Judge which too was dismissed. He has, therefore, come up in revision to this Court.
3. Learned counsel for the petitioner contended that the date of filing of the replication was not a date of hearing and, therefore, the order of the learned Civil Judge dismissing the suit in default was not sustainable. He relied on Mst. Ghulam Sakina and 6 others v, Karim Bakhsh and 7 others (1) and Rahim Bux and another v. Gul Muhammad and 2 others (2) to support his contention.
4. On the other hand, learned counsel for the respondent maintained that the date for submission of the replication was also a date of hearing and, therefore, no legitimate exception could be taken to the order passed by the learned Rent Controller. In this connection, he relied on Muhammad Din v. Zabarddast Khan and another (3).
5. The facts of the case of Mst. Ghulam Sakina and 6 others, which was decided by this Court, are on all fours with those of the case in hand inasmuch as in the former case also the suit had been dismissed in default on a date which was fixed for presenting the replication, and it was ruled by Nasim Hasan Shah, J. (as his Lordship then was) that the date for filing of the replication was not a date of hearing and, therefore, the suit could not be dismissed on that date. The relevant observations of his Lordship make the following reading :- "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 his 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 to the 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, 27th January, 1962 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."
6. In the case of Rahim Bux and another, which was also disposed of by this Court, it was held by Karam Elahee Chauhan, J. (as his Lordship then was) that if a suit is dismissed in default on a date which is not fixed for its hearing, the order of dismissal is void ab initio and without jurisdiction.
7. As far the case of Muhammad Din, it was a suit which was dismissed in default on the date fixed for filing of written statement, it was held by a learned Judge of the High Court of Azad Jammu & Kashmir, who decided that case, that the date fixed for filing of written statement was a date of hearing of the suit and as the plaintiff was (1) PLD 1970 Lah. 412 (2) PLD 1971 Lah. 746 (3) PLD 1972 Azad J & K 7 not present on that date, the suit was rightly dismissed in default, on that date. During the course of his judgment, his Lordship referred to the case of Msl. Ghulam Sakina and 6 others but did not express disagreement with the view taken therein that the date of filing of replication is not a date of hearing.
8. In Muhammad Din's case some general observations were, however, made with a view to spelling out the true import of the word "hearing". In the first instance it was noted by his Lordship that according to the consensus of authorities every date to which a suit is adjourned is not a date of hearing. The remarks made in this behalf read thus :- "A perusal of the rulings shows that no precise definition has either been or attempted to be laid down. That was quite natural. The consensus of authorities however is that a date fixed for the purpose of determining some interlocutory matter for the future conduct of the case cannot be termed as a date of hearing. In PLD 1949 Lah. 432, Cornelius, J. Held that where no investigation of any matter germane to the suit fell to be performed by the trial Court and the only order which it could possibly make was an order of administrative nature, the date so fixed could not be termed as a date of hearing."
' A little later, his Lordship recorded the following observations which give an impression that every date to which a suit is adjourned is a date of hearing :- "The Code as stated earlier has neither defined the terms nor does it at the same time differentiate between a date when; say, evidence is to be recorded or arguments are to be heard or issues are to be framed as against those for which, say, the defendants are summoned or the case is otherwise adjourned. In the Code itself every adjourned date has been termed as a date of hearing. It may be emphasised that the Court has not to hear the plaintiff or the defendant but it has to hear the case. Thus in a sense the coming up of the case before the Court on any adjourned date of hearing cannot be termed any thing but its hearing. It was contended that to interpret the word 'hearing' in such a way may lead to harsh results but it appears that it is not so because the plaintiff whose suit is dismissed for default is always at liberty to show that his absence was due to sufficient causes and Courts have generally been liberal in enlarging the scope of such causes."
' Then, further observations were made by his Lordship according to which if there is a date fixed in a suit which is not for its hearing, the plaintiff cannot be penalized for his absence on that date.
These observations run as follows :- "If a case is fixed for something which could be termed as hearing then the plaintiff's absence is sufficient for its dismissal but on the other hand if it is not fixed for such hearing, the plaintiff may well claim that he cannot be penalised simply because the Court could have proceeded to hear it within the meaning of the word."
' It would, therefore, appear that it was not definitely ruled in the case of Muhammad Din that every date to which a suit is adjourned is a date of its hearing. Thus even according to the general observations made in that case, the date on which replication is to be filed cannot be termed as a date of hearing.
9. What is now to be examined is whether the date fixed for filing of replication is as crucial a date as the date on which the written statement is to be presented so that, on the authority of the case of Muhammad Din, the former may also be classified as a date of hearing. To my mind, is lot of differences between the said two dates. When a suit is brought, it is obligatory for the Court, before whom it is filed, to call upon the defendant to present his written statement but it is not necessary to require the plaintiff to file his replication after the written statement has been received. Moreover, there are express provisions contained in Order VIII of the Code of Civil Procedure for the filing of written statement but there are no such provisions relating to the submission of replication. Also, according to clause (a) of sub-rule (1) of rule (6) of Order IX of the Cod of Civil Procedure if the defendant does not turn up, despite service, to present his written statement, the Court can proceed ex parte and pass decree without recording evidence, but no such penalty has been provided in the said Code for the failure of the plaintiff to appear before the Court on the date fixed for the filing of replication by him. Therefore, the date fixed for the filing of written statement cannot be equated with the one on which replication is to be submitted.
10. In my humble opinion, therefore, the case of Muhammad Din cannot serve, and I say so with utmost respect, as an authority for the proposition that when a suit is adjourned to a date for filing of replication by the plaintiff it would be a date of hearing of the suit, and if the plaintiff fails to enter appearance on that date, his suit could be liable to be dismissed in default.
11. As indicated above, the case of Mst. Ghulam Sakina and 6 others has a direct bearing on the question involved in the present case inasmuch as it was clearly laid down therein 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 on that date. It was also held in the case of Rahim Bux and another that if a suit is dismissed-in--default on an adjourned date which is not the date of its hearing, the order of dismissal is void ab initio and without jurisdiction. The date on which the suit giving rise to the present appeal was dismissed in default was also the date which had been fixed for the submission of replication. Therefore, respect fully relying on the said two cases, I hold that the order, by which the petitioner's suit was dismissed in default was void ab initio, without jurisdiction and a nullity.
12. In result, I accept the revision petition with costs, set aside the order of the two Courts below and remand the suit to the learned Civil Judge for further proceedings and fresh decision in accordance with law. The parties shall appear before him on 20th January, 1980.