' MUHAMMAD MUNIR PERACHA, J.---The appellant filed a suit for recovery of money against the respondent in the Court of Civil Judge, Islamabad. The suit was contested by the respondent, who filed the written statement. Necessary issues were framed by the trial Court on 21-2-2008 and the case was fixed for evidence of the parties. The case was adjourned from time to time. On 18-9- 2003, the case was fixed for the evidence of the plaintiff. The order sheet of the trial Judge shows that the evidence of the plaintiff was not present that day and the case was adjourned to 6-11- 2003, the learned trial Judge was on the leave and the case was adjourned to 9-1-2004. It appears that before 9-1-2004, the learned Presiding Judge was transferred. The order sheet, dated 9-1- 2004, shows that the successor Judge had not been appointed. The case was, therefore, adjourned to 4-3-2004. On 4-3-2004, the case was called for thrice. Nobody appeared on behalf of the appellant/plaintiff. The suit was therefore, dismissed for non-prosecution. An application for restoration of the suit was filed by the petitioner under Order IX, rule 9, C.P.C. On 13-4-2004. The application, however, was dismissed vide order, dated 6-7-2005. The appellant challenged the above said order, dated 6-7-2005, passed by the trial Judge before this Court through the present F.A.O.
2. I have heard the learned counsel for the appellant and the respondent. The learned counsel for the appellant submits that the suit could not have been dismissed for non-prosecution on 4-3- 2004. He submits that Order IX, rule 8, C.P.C. Could not have been invoked by the trial Judge as according to the learned counsel, the case was not fixed for hearing on that day. The learned counsel contends that the Presiding Officer was not available on two earlier dates i.e, 6-4-2003 and 9-1-2004 and the case was adjourned by the Reader of the Court. The arguments of the learned counsel is that the order passed by the trial Judge, dismissing the suit for non-prosecution is void order, therefore, no limitation runs against it. On the other hand, the learned counsel for the respondent urged that the learned trial Judge rightly dismissed the application for restoration of the suit. The application for restoration was barred by time and no good reason for condonation of delay in filing the application was given by the petitioner. According to the learned counsel, the ground for condonation of delay in filing the application for restoration was a patent lie.
3. Order IX, rule 8, C.P.C. Reads as under:-- "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, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder."
4. The phrase "called on for hearing" has been examined in a number of judgments. There is a consensus that hearing would be taking of evidence, hearing of arguments or consideration of question relating to suit, which would enable the Court to finally come to an adjudication upon it and not the consideration of interlocutory matters. As has already been mentioned, the case was adjourned to 6-11-2003, vide order, ^dated 18-9-2003, by the learned trial Judge for the evidence of the plaintiff. On 6-11-2003, the learned trial Judge was on leave and the Reader of the Court adjourned the case to 9-1-2004. On 9-1-2004, also the Presiding Officer was not holding the Court and the case was adjourned by the Reader to 9-1-2004. The point to be determined is whether 4- 3-2004, can be considered to be a date of hearing. Before insertion of Order XVII, rules 4 and 5, the Reader of the Court was not competent to pass any order except adjourning the suit to the next date for making an appropriate order by the learned Judge However, in order to avoid delay in disposal of the suits, Order XVII, rules 4 and 3 were inserted. Rule 3 is relevant for the present purpose, which is reproduced:- "Where on any day the Presiding Officer of the Court is absent by reason of illness or any other cause, the parties to the suit or proceeding set down for that day (notwithstanding the knowledge that the Presiding Officer would be absent) shall appear in the Court in the Court-House on that day and die ministerial officer of the Court authorized in that behalf shall hand over to the parties slips of paper specifying the other date fixed for proceeding with the suit or proceeding and signed by him.
5. Order XVII, rule 3 was examined by the Honourable Supreme Court in case reported as "Nowsheri Khan v. Syed Ahmed Shah 1983 SCM R 1092". At page 1093 of the report, it was held by the apex Court:- "However, even if the provisions of rule 5 of Order XVII, C.P.C. Are held applicable to the proceedings under Order XLI of the C.P.C. On account of the provisions of subsection (2) of section 107 of the C.P.C. Which provides:- "107. Power of Appellate Court.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Court of original jurisdiction in respect of suits instituted therein."
Even then we find that the Reader is not competent to fix the case for hearing, Tlie Reader of the Court before the amendment in the Civil Procedure Code, referred to above, was not authorized to fix a date for proceeding with the suit in the absence of the Presiding Officer of the Court but could fix a date for purposes of enabling the Court to fix another date for the future conduct of the proceedings. It was only as a result of the new rule 3 inserted in Order XVII, that this has become possible. Nevertheless to prevent any plea to die effect condition, which was of a mandatory nature, it was not possible to dismiss the appeal on the ground that the appellant had failed to appear on the date fixed for the hearing of the appeal (see Allah Dad v. The Board of Revenue, Sindh and others PLD 1981 Kar.
73. On the other hand, in the circumstances of this case it was necessary to duly serve the parties for the said date. This Court, in the case of the Manager Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 observed that before an Additional District Judge could dismiss an appeal he was under an obligation to see firstly that the party to be effected by the order had been duly served and unless this was the situation the case could not be called for hearing on that date. It further observed that in any case, the power to dismiss the appeal could not have been exercised mechanically, because a discretion vested in the Court to dismiss the appeal or to give a further chance to the absenting party. It was further observed that the order of dismissal (in that case) having been made in ignorance of jurisdiction was void and a nullity."
6. In the absence of any material, it cannot be held that the Reader handed over to the parties, slip of paper specifying the other date fixed for proceedings. I, therefore, hold that 4-3-2004, cannot be termed as date of hearing. The trial Court was, therefore, not competent to dismiss the suit for non- prosecution. The other question to be examined is that whether the application for restoration was barred by time and if so, the delay in filing the application could have been condoned. The application for restoration has been filed on 13-4-2004. The application was thus barred by time. It was accompanied by an application under section 5 of the Limitation Act, which has been made applicable to an application under Order IX, rule 9, C.P.C. The ground mentioned in the application is: "That unfortunately and mistakenly the applicant/plaintiff noted the adjourned date of hearing as 13-4-2004 instead of 4-3-2004. That due to this unfortunate misunderstanding the applicant/ plaintiff could not appear before this Honourable Court on 4-3-2004 and instead came to the Court on D 13-4-2004 but did not find the case in the cause list of the Court."
' In support of this application the petitioner annexed with the application two pages from the Diary, kept by the learned counsel representing him before the trial Court. The Diary page, dated 13-4- 2004, shows that this case is the last case mentioned. I agree with the learned counsel for the respondent that this entry has been made subsequently, in order to cover the default made in appearance on 9-1-2004 and delay in filing the application for restoration. Above this case, number of cases have been mentioned, the last date of hearing whereof, is later than the last date of hearing of this case, The delay in filing the application for restoration was rightly to be condoned by the learned trial Judge.
7. After having come to the conclusion that order, dated 4-3-2004, passed by the learned trial Judge, whereby, the suit of the appellant was dismissed for non-prosecution is illegal and that the application for restoration, filed by the petitioner was barred by time, the next question is as to what order should be passed. Taking guidance from the judgment of the Honourable Supreme Court in case reported as "Manager Jammu and Kashmir State Property in Pakistan v. Khuda Yar, PLD 1975 SC 678" let me examine, whether order, dated 4-3-2004, can be set aside in my revisional jurisdiction under section 115, C.P.C. The precedent case is related to a period when there was no period of limitation for filing a revision petition. The Honourable Supreme Court held that no limitation is prescribed by the Limitation Act or by any rule in High Court Rules and Orders for filing petition under section 115, C.P.C. It was further held by the Honourable Supreme Court that High Court could entertain petition, even beyond normal un-prescribed period of 90 days, after satisfied as regard delay in filing the petition. However, the difficulty now is that second proviso has been added in subsection (1) of section 115, which reads as under:-- "Provided that such application shall be made within ninety days of the decision of the subordinate Court which shall provide a copy of such decision within three days thereof, and the High Court shall dispose of such application within three months."
' In this very judgment, it was held by the Honourable Supreme Court at page 691 of the report:-- "As will be seen from the foregoing narrative, the ultimate decision in this case depends on the determination of the technical points involved in the matter, on which will depend, in the final analysis the question as to whether the appellant's appeal filed before the District Judge should be restored so as to be heard and decided on merits or alternatively the matter should be allowed to rest at the trial Court's judgment to which finality would thus attach in respect of the disposal of a most valuable property thus completely shutting the door for the plaintiff-appellant. I have already referred at the outset to the fictional strangeness about the manner in which successive orders of dismissal in default were made or allowed to be made.
'The proposition could hardly be disputed that the principal object behind all legal formalities is to safeguard the paramount interest of justice. In fact while considering the importance of legal technicalities and rules of procedure in the administration of justice, it is inevitable to recall the various evolutionary stages in the transition from justice without law of primitive society to justice in accordance with law of modern society and the conflict between equity and law in judicial history.
It cannot be denied that legal precepts were devised with a view to impart certainty, and consistency and uniformity to administration of justice and to secure it against arbitrariness, errors of individual judgment and mala fide. Over a period of time this development of codes and rules led to the evaluation of what is called "jurisprudence of Conception" a system of logical deduction from fixed premises. In order to avoid the rigidity and hardship of ultra formalism recourse is had to principle of equitable application and interpretation of legal precepts and conferment of judicial discretion on the Courts as envisaged by Order XLI, rule 33 of the C.P.C. In regard to Constitutional power of this Court to do complete justice in all matters. These two provisions read together lead to the irreparable conclusion that mere technicalities unless offering an insurmountable hurdle should not be allowed to defeat the ends of justice."
8. Section 115(1), C.P.C. Can be divided into two parts. The High Court may suo motu call for the record of any case, which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto and may make such order in the case as it thinks fit. The High Court may also exercise the revisional power on an application filed by a person. In case an application, invoking the revisional jurisdiction is filed, such application is to be filed within 90 days of E the passing of the order. I am of the opinion that in appropriate cases, the High Court may exercise its suo motu power, even if the application filed by the person, invoking the revisional jurisdiction is barred by time, if a glaring mistake committed by a Court subordinate to the High Court comes to the knowledge of the High Court, though through an application of an aggrieved person filed beyond period of limitation, the High Court cannot and should not allow the mistake to remain on the ground that the application filed is barred by time.
8A. I, therefore, in exercise of my suo motu power under section 115, C.P.C. Set aside order, dated 4- 3-2004, passed by the trial Court, dismissing the suit of the petitioner for non-prosecution. The net result is that suit of the petitioner shall be deemed to be pending before the trial Court and shall be disposed of on merits in accordance with law. Parties to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.