TARIQ JAVAID, J.---This revision is directed against judgment dated 10-2-2010 passed by the learned Additional District Judge, Lahore whereby order. dated 10-12-2009 dismissing the application for restoration of the case dismissed for non-prosecution on 30-9-2009, was upheld.
The main ground for dismissal of the application was that the application for restoration of the case was filed beyond 30 days prescribed under Article 168 of the Limitation Act, 1908.
2. The learned counsel for the petitioner argued that the case was fixed for hearing on 26-9-2009 when the learned Civil Judge, Lahore was on leave and the next date of hearing, that is, 30-9-2009 was fixed by the Reader as such it was not a "date of hearing" and the case could not be dismissed for non-prosecution. It is argued that on the date fixed by the Reader, the learned trial Court was vested with the jurisdiction to fix the case for hearing. According to the learned counsel the order dated 30-9-2009 was a nullity, hence Article 181 of the Limitation Act, 1908 was applicable, hence the learned appellate Court has erred in passing the impugned judgment. He has relied on Nowsheri Khan v. Said Ahmad Shah (1983 SCM R 1092) and Muhammad Qasim v. Moujuddin and others (1995 SCM R 218). It is also argued that while fixing the case for 30-9-2009, the Reader had failed to issue signed slip specifying the date of hearing, therefore, the mandatory provisions of Order XVII. Rule 5 were not complied with.
3. On the other hand, learned counsel for the respondents has argued that Article 168 of the Limitation Act was attracted in the circumstances of this case. The application for restoration of the case was filed 'after 2 months 9 days. Neither the delay of two months nine days has been explained nor any reasonable cause for nonappearance of the petitioner on 30-9-2009 was explained. Therefore, the impugned orders had rightly been passed. Reliance is placed on Muhammad Asif v. Fahad and another (2009 SCM R 1030) and Abdul Rashid v. Director General Post Offices Islamabad and others (2009 SCM R 1435).
4. There is .no dispute that the case was adjourned to 30-9-2009 by the Reader of the learned Civil Judge as the Presiding Officer was absent on 26-9-2009. It is also admitted that slips signed by Reader specifying the date of hearing in terms of Order XVII Rule 5 were not handed over to the parties. There is a long list of authorities wherein it has been held that the word "adjourned" as appearing in Order XVII Rule 2 of the C.P.C. means "adjourned" by the Court. Thus the "date 30-9- 2009 could only be the date to which the hearing is adjourned" if the suit had been adjourned by the Court itself and not by the Reader.
5. The learned counsel for the petitioner also pressed into service the provisions of Order XVII Rule 5 which casts a duty on the Reader of the Court to hand over signed slips, specifying the date for proceeding when the Presiding Officer is absent due to illness or for any other cause, to the parties.
It is alleged no such slip was handed over to the petitioner. Therefore, the order of dismissal has been made in ignorance of law and as such was void and nullity.
6. In Nowsheri Khan v. Said Ahmad, Shah (1983 SCM R 1092) the above said proposition was considered by the Hon'ble Supreme Court and it was held as follows:-- "Even then we find that the Reader is not competent to fix the case for hearing. The 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 5 inserted in Order XVII, that this' has become possible. Nevertheless to prevent any plea to the effect that the parties were not cognizant of the date fixed for proceeding with the suit a condition has been laid down, namely, that the Reader shall "hand-over to the parties slips of paper specifying the other date fixed for proceedings with the suit or proceedings." This is mandatory. In this case, admittedly the appellant was not present either on 4-9-1976 when the case first came up for hearing, nor was he present on 8-9-1976 when the Moharrir fixed the case for 16-9-1976. In this situation,' there was consequently no question for hearing of the case. Thus, rule 3 of Order XVII was not complied with and the order of the District Judge dismissing the suit for non-prosecution on 16-9-1976 was illegal. The appeal could conceivably have been dismissed on 4-9-1976 as it was adjourned to the said date by the learned District Judge himself, in the presence of the appellant. However, since the learned District Judge was absent on 4-9-1976 and only the Moharrir was present who obviously could not dismiss the appeal, but required the parties to come on a future date when the learned District Judge was expected to be in attendance and deal with the matter. The date given by the Reader might have become the "date fixed for proceeding with the suit or proceedings", if the parties were handed over the slips of paper specifying the said other date. Without complying with this 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 (1). 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 (2) observed that before an Additional District Judge could dismiss an appeal he was under an obligation to see firstly that the party to be affected by the order had been duly served and unless this was the situation the case could not be called for hearing on that day. 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.
In these circumstances, we are of the view that the order of the learned District Judge dated 16-9- 1976 to dismiss the appeal in his absence without duly serving him for the said date was void and a nullity because the date 16-9-1976 could not be considered to be "the day when the appeal was called on for hearing". In these circumstances, no question of any limitation arose and the application for restoration of the appeal dismissed for non-prosecution should have been entertained and accepted and not dismissed as barred by time, especially when it was filed without any undue delay"
7. In Muhammad Qasim v. Moujuddin and others (1995 SCM R 218) it was held that when order of dismissal for non-prosecution was void and nullity, the appropriate Article applicable was Article 181 of the First Schedule to the Limitation Act and not Article 168 thereof.
8. The judgments relied upon by the learned counsel for the respondents are not applicable to the facts of the present case. In Muhammad Asif versus Fahad and another (2009 SCM R 1030), the order of dismissal for non-prosecution did not mention that the suit was dismissed under Order IX Rule 3, C.P.C. but it was apparent that the trial Court had proceeded under Order IX Rule 3, C.P.C., therefore, it was held that Article 181 of the Limitation Act was not attracted whereas in present case order dated 30-9-2009 has been passed with utter disregard to the mandatory provisions of Order XVII, Rule 5. Similarly, in Abdul Rashid v. Director General Post Offices (2009 SCM R 1435), it was not shown that the order impugned therein was nullity and without jurisdiction. It was simply a case for the condonation of delay and his lordship Ch. Ijaz Ahmad, J. observed as follows:-- "(7) It is the duty and obligation of the aggrieved person to pursue his legal remedy with diligence and satisfy conscious of the Court or quasi-judicial authority for approaching respective forums beyond prescribed limitation coupled with the fact that in case the aggrieved person has not availed remedy within the prescribe period then the vested right had accrued to the other side which cannot be taken away rightly even if objections to that effect were not raised by the opposite party. This Court had already taken aforesaid view in the following judgments:--
(i) Hakim Muhammad Buta's case PLD 1985 SC 153 (ii) Muhammad Hussain's case PLD 1993 SC 147."
9. The case of the petitioner is fully covered by the ratio decidendi of the judgments relied upon by him. The date of hearing on 26-9-2009 was fixed by the Reader and provisions of Order XVII, Rule 5 were admittedly not adhered to. Therefore, the adjourned date of hearing, that is, 30-9-2009 was not date of hearing within the meanings of Order XVII Rule 2. The learned trial Court' was only vested with the power to adjourned the case on 30-6-2009 and fix the date of hearing. Under the dictum laid down by the Hon'ble Supreme Court in Nowsheri Khan v. Said Ahmad Khan supra, the order dated 30-9-2009 was a nullity. Therefore Article 181 of the Limitation Act was applicable. This revision is allowed, the impugned orders are set aside and the suit is restored. The parties are directed to appear before the learned trial Court on 14-2-2011. As this case involves interpretation of law, there is no order for costs.