1. ' MUHAMMAD ALI MAZHAR, J.--- Plaintiffs filed the above Suit for Declaration, Permanent Injunction and Rendition of Accounts with the following prayers:--
(a) Declare that the defendant No,1 is the cashier of the plaintiffs in respect of Shops Nos.6 to 9 situated at Riaz Masjid, Delhi Mercantile Muslim Housing Society;
(b) Declare that the defendant No,1 is in illegal occupation of the said premises and running the hotel and pan shop business without giving proper accounts to the plaintiffs;
(c) Declare that the said hotel and pan shop business was sold by the defendant No, 1's father to the plaintiffs' father in consideration of Rs,28,00,000 in 1998;
(d) Declare that the plaintiffs are the bona fide tenants of shops Nos.6 to 9 since January, 1998;
(e) Grant Mandatory injunction restraining the defendant No,1 from handing over the possession of the hotel and pan shop business to any other person or through himself or through his servants or creating third party interest in respect of the Shops Nos.6 to 9;
(f) ' Direct the defendant No,1 to give account in respect of the said hotel business and pan shop since January, 2004 till realization of the amount; The defendant No,1 filed Written Statement denying the claim of the plaintiffs made in the plaint. The defendant No,1 also raised preliminary legal objections to the effect (i) that the plaintiffs have no legal character to file the instant Suit as the same has been based on forged and fabricated documents, therefore the same is hit by section 42 of the Specific Relief Act; (ii) that the Suit is also hit by section 56(J) of the Specific Relief Act as the conduct of the plaintiffs was fraudulent; (iii) that the Suit is not maintainable in law being hit by section 10, C . P. C .
2. ' The defendant No,2 having been served with the summ'ns/notice, did not appear, therefore vide order dated 12-9-2005, the case against defendant No,2 was ordered to proceed ex parte.
3. ' On 30-9-2005 as none was present, the matter was adjourned. On 22-5-2006, the learned counsel for the parties were directed to file their consent issues. However, on 6-11-2006 when the matter was fixed in Court for issues, none was present for the plaintiffs. On 8-9-2008, again nobody was present for the plaintiff however learned counsel for the defendant was present. On 10-10-2008 also none was present for the plaintiffs while defendant's counsel was in attendance. The matter came up for hearing of C.M.As. No,6556 of 2005 and 6557 of 2005 as well as for settlement of issues on 16-3-2009 but nobody was present therefore both the above applications were dismissed for non-prosecution and parties were directed to file proposed issues within fifteen days.
4. 'Today, the matter is fixed for settlement of issues but none is present for the plaintiff nor the plaintiff has filed proposed issues. The learned counsel for the defendant No,1 is present and has argued that the date for settlement of issues is a date for hearing of the Suit and since, the plaintiff has lost interest, therefore, the Suit may be dismissed for non-prosecution. Order XIV, rule 1, C.P.C.
5. Pertains to the settlement of issues and determination of Suit on issues of law or on issues agreed upon, which provides:-- Framing Issues:--
(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other;
(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence;
(3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue;
(4) Issues are of two kinds: (a) issues of fact, (b) issues of law;
(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend;
(6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.
6. ' According to sub-rule (5) of rule 1 of Order XIV, C.P.C., it has been clearly provided that at the first hearing of the suit the Court shall, after reading the plaint and the written statement frame and record the issues on which the right derision of the case appears to depend, therefore for all intent and purpose, the date fixed for settlement of issues is a date of hearing. Order IX, Rule 8 provides the consequences when the defendant appears and plaintiff does not appear when the suit is called on for hearing. For ready reference, Order 9 Rule 8, C.P.C. Is also reproduced as under:-- "(8) Procedure where defendant only appears.--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."
7. ' In support of arguments, the learned counsel relied upon a judgment reported in PLD 1959 (W.P.)
8. Kar. 143 in which a Division Bench of this Court has observed that date of settlement of issues is a date of hearing of the Suit within the meaning of Civil Procedure Code and Rules of Chief Court on Civil Original side.
9. ' Besides above judgment, two more judgments of this Court are also available on this point, which are reported in 1991 CLC 1766 (Government of Sindh through Secretary, Education Department and 3 others v. Muslim Educational Society (Regd.) and 1995 CLC 461 Messrs Ciba Geigy (Pak.) Limited v.
10. Muhammad Safdar. In the first judgment, it is again observed that date fixed for framing of issues is a date of hearing and provisions of Order XIV, rule 1(5), C.P.C. Postulate that issues are to be framed at the first hearing of suit, therefore date for framing of issues was thus date of hearing and not a formal date. In this case also, the matter was fixed for settlement of issues but it was dismissed in non-prosecution. In the second judgment, the suit was fixed for settlement of issues but due to the absence of the plaintiff, the same was dismissed in non-prosecution. The plaintiff took the plea that the Court should have proceeded to frame issues and not dismissed the suit. The Court observed that duty is cast upon plaintiff to pursue his case diligently and where he neglects or fails to do so, provision of Order IX, rule 3, C.P.C. Would become operative, therefore the suit was thus, rightly dismissed for default in appearance on specified date.
11. ' For the foregoing reasons, I have no hesitation to hold that the date fixed for settlement of issues is a date of hearing and in absence of plaintiff, the suit may be dismissed in non-prosecution. Suit is dismissed in non-prosecution.