' MAULVI ANWARUL HAQ, J.--- On 1-9-2004 the petitioner filed a suit against the respondents. In the plaint, it was stated that the suit-land mentioned in para.1 thereof was owned by Khuda Bakhsh the father of the parties. It was mentioned in para.2 of the plaint that earlier a similar suit was filed which was dismissed for non-prosecution on 1-7-2003. According to the plaint, the respondent No,1 got the land transferred by means of a registered document, dated 16-11-2001 on which Mutation No,1097 was attested on 30-11-2001. Earlier an attempt was also made but Mutation No,803 was rejected on 30-6-1997. She filed a writ petition in the High Court wherein Khuda Bakhsh gave a statement that he does not want to gift away any of his property and wants only to sell a portion of it for his personal need. According to her, the deceased never made any gift in favour of the respondent No,1 and the document was never executed by him. With these averments a declaration and permanent injunction was prayed for. The respondent No,1 filed a written statement objecting that the suit is barred by law as the earlier suit was dismissed for non- prosecution. She pleaded a valid sale in her favour and further that she had transferred the land to her sons vide registered document, dated 12-7-2002. She also filed an application under Order VII, rule 11, C.P.C. For rejection of the plaint. The learned trial Court dismissed the application on 30-6- 2005. A revision filed by the respondent No,1 was disposed of by a learned Additional District Judge, Daska, on 20-12-2005. He framed an issue as to whether the plaint is liable to be rejected and remanded back the case to the learned trial Court.
Thereafter, vide order, dated 30-5-2006 the learned trial Court rejected the plaint. A first appeal filed by the petitioner has been dismissed by a learned Additional District Judge, Daska on 29-6- 2007.
2. Learned counsel for the petitioner contends that no doubt the earlier suit was dismissed for non- prosecution as mentioned in the plaint itself yet according to him the suit was dismissed on a date when it was not taken up for hearing and the said order being void, the bar of Order IX, rule 8, C.P.C.
Would not be attracted. Learned counsel for the respondent No,1 concedes that the suit was dismissed on a date not fixed for hearing. However, he contends that since the suit was dismissed for non-prosecution, the only remedy available is an application for restoration of the suit and not a fresh suit.
3. I have gone through the copies of the records. Before I proceed further I may note here that during the limine proceedings I had summoned the record of the earlier suit and examined the order sheet and it was found that on 1-7-2003 when the earlier suit was dismissed for non- prosecution only a miscellaneous application was fixed for its reply and arguments. The said order, of course, is without jurisdiction. Needless to state that the learned counsel for the contesting respondent does not oppose the said proposition and the facts on which it is based. However, at the same time I do agree with the learned counsel for the respondent No,1 that the petitioner ought to have filed an application for revival of the said earlier suit. The said contention of the learned counsel is supported by the case of Allahwala Foundation v. Province of Sindh and others 2002 SCM R 798.
4. The civil revision is accordingly disposed of with the findings that the order passed by Miss Shahzadi Najaf, learned Civil Judge, Daska, on 1-7-2003 in Civil Suit No,49 of 2003 titled "Iqbal Bibi v.
Irshad Bibi and another" dismissing it for non-prosecution is illegal and void ab initio as the suit was not fixed for hearing on the said date. The petitioner to file an application in the said Court (or successor Court) for revival of the said suit. The respondents shall be summoned and the proceedings in the suit shall commence at the stage they were when the said order dated 1-7- 2003 was passed and the suit shall be decided in accordance with law. No orders as to costs.
5. A copy of this order to be remitted to the learned Senior Civil Judge, Sialkot, immediately, along with the records of the case.