1. ' This revision petition is directed against the orders dated 31-12-1978, 12-6-1977 and 14-5-1973, of the Court of Sub-Judge, Kotli by which the application for restoration of the suit dismissed in default on 14-5-1973, was also dismissed in default and subsequently, the application for restoration of the application for restoration of the suit was also dismissed in default.
2. ' The learned counsel for the parties were heard.
3. ' The acts of the trial Court, I may say on the very outset after going through the whole case, amount to gross abuse of process of the Court. The suit as well as the applications were allowed to run for a considerable time without proceedings to further the progress of the case and then it was dismissed as if the trial Court was in wait to find a chance/occasion so as to dismiss the suit and the applications described above in default instead of deciding the same on merits. All the presiding officers i,e,, Sub-Judges who are responsible for dismissal of the suit and the applications in default, appear to me to have avoided the writing of the judgments or orders on merits while disposing of the suit and the applications arising out of the dismissal of the suit. In this manner, they have not only become a source of trouble to the people who had to suffer from monetary loss as well as waste of time but also have brought a bad name to the administration of justice, say justice delayed, justice denied.
4. ' This was a suit of pre-emption filed in the year 1963 by Bahadur Ali who is now dead and is represented by his legal heirs. Before this, the suit came twice to this Court and after remand of the suit by the District Judge, the suit for the land in suit had been pending without any effective proceedings therein when it was dismissed in default on 14-5-1973, because the plaintiff was found absent by the trial Court and none representing him could save also appeared before the Court.
5. For its restoration, an application was made on 6-6-1973 and it had also been going on without any progress in the proceedings when it was dismissed in default on 12-6-1977. For its restoration, a second application was made on 7-7-1977 which was also dismissed in default on 31-12-1978. It had also usually been the practice of the Presiding Officers concerned to write on the applications etc., that they should come up for proper orders or for arguments and no proper order of arguments could be made or heard till they were dismissed in default.
6. ' After rejection of the appeal in the High Court, the original suit was remitted to the trial Court and it was received on 7-2-1973 and notices were then issued to the parties by the trial Court and the date for their appearance was fixed for 11-3-1973. On 11-3-1973, the notices could not be returned to the Court after their service to be effected upon the parties and the next date for appearance of the parties was fixed for 14-5-1973. On 14-5-1973, the suit was dismissed in default as, according to the trial Court, the plaintiff was absent and Muhammad Alam, one of the defendants was present before the Court. But this impugned order did not reveal that the plaintiff was duly served with the notice issued to him for his appearance before the Court on 14-5-1973. There is no notice on record issued to the plaintiff. A clear abuse of the process of the Court is there and for that, the poor plaintiff and his legal heirs now cannot be legally penalized. There was no effort on the part of the trial Court to see as to why the plaintiff or his legal heirs had to remain absent especially when the Court had been practically taking no proceedings in the matter in issue between the parties.
7. ' The learned counsel for the respondents has raised a preliminary objection that the revision petition is not competent because order of dismissal under Order IX, rule 9, C. P. C. Is appealable under Order XLIII, rule 1 (c), C. P. C. This could be so if the case could have been open to appeal but none of the impugned orders is appealable. Moreover, the applications for restoration of the suit cannot be deemed to have been filed under Order IX, rule 9 read with Rule 8 and section 141, C. P. C.
8. Because on the 'date the suit was dismissed in default, it was not fixed for hearing. It was simply fixed for appearance of the parties and the notice issued to the plaintiff does not appear to have been served upon him as there is no such notice on record so as to indicate due service effected upon the plaintiff. Therefore, the trial Court ought to have issued a second notice when the plaintiff was found absent on 11-3-1973 and the notice issued to be duly served upon him was not in hand.
9. That being so, the application for restoration of the suit would be deemed to have been filed under section 151, C. P. C. The first application was made within a period of 30 days from the order of dismissal on the grounds were even stated therein for his non-appearance before the Court and it was also alleged therein that the plaintiff was ill and his counsel was absent due to circumstances beyond his control. These allegations were not refuted by the respondents. The notice was issued to the plaintiff for hi appearance on 11-3-1973 but it was never returned to the Court so as to apprise the Court with regard to the service of the plaintiff. Thus, it could be safely deemed that there were sufficient grounds for restoration of the suit but unfortunately, the first application for restoration of the suit was also dismissed in default for restoration of which alongwith restoration of the suit, another application was moved and that was also dismissed in default.
10. ' The learned counsel for the respondents is of the contention that the second application filed before the Court was not competent as it was not filed within a period of 30 days from the order of dismissal of the suit. He has cited, in support of his contention, PLD 1955 Quetta 25. This is not a good law enunciated therein. As there is no express provision with regard to the limitation for the second application for restoration of the application within which such an application could be filed, Article 181 of Limitation Act being residuary one, would be applicable to such an application.
11. Vide PLD 1971 Kar. 188 in this behalf which is a Division Bench case. So the application was filed within limitation. The impugned orders could not be treated as having been made under Order IX, rule 8, C. P. C. As indicated somewhere above. So the authorities cited by the learned counsel for the respondents in support of his contention have no application in the matter. It was during the proceedings in the first application that Bahadur Ali, the plaintiff died. It is wrong to allege that his legal representatives were not brought on record within a period of limitation and so is the case in concerns of legal heirs of Mst. Gulzar Begum deceased, one of the legal representatives of Bahadur Ali, deceased. Vide application Exh. C. A. Dated 11-8-1973 and Exh. C. B. Dated 7-12-1974 which show that the applications for substitution of the legal heirs were duly made in accordance with law and so there is no question of abatement of suit. As a matter of law when the suit was not pending before the Court, the provisions of Order XXII, C. P. C. And rules thereunder could not be attracted in proceedings on applications either for restoration of suitor for restoration of the application for restoration of the suit dismissed in default.
12. ' That being so, by acceptance of this revision petition, all the impugned orders are hereby set aside and the original suit is ordered to be brought on its original number so as to be proceeded with in accordance with law by the trial Court.