With the consent of the parties this petition is being treated as a pacca matter and shall be disposed of on the basis of the available record.
2. The brief facts giving rise to this petition are that Respondent No. 1 filed a suit for declaration and cancellation of documents against the petitioner and the proforma -Respondents No. 4 to 6 in the Civil Courts at Attock. On 23.09.2003, the learned Civil Judge, Attock dismissed the suit for non- prosecution as also for non-deposit of the process fee. On Respondent No. l's application the suit was restored. The suit was again dismissed on 18.10.2003 for non-deposit of process fee and "Talbana Form". Respondent No. 1 filed an application for recall of the order dated 18.10.2003 and restoration of the suit. On the said application, the learned Civil Judge, Attock directed that notice be issued to the defendants in the suit i.e. the petitioner and Respondents No. 4 to 6. The petitioner and one Fayyaz Shah entered appearance and contested the application for restoration of the suit.
Respondent No. l's application was accepted and the suit was restored by the learned Civil Judge, Attock, through order dated 02.03.2006. Feeling aggrieved the petitioner challenged the order dated 02.03.2006 by way of a civil revision. The revision petition of the petitioner was, however, dismissed by the learned Addl. District Judge, Attock on 13.07.2006, with the result that the order dated 02.03.2006 of the learned trial Court remained intact.
3. The petitioner has assailed the impugned orders dated 02.03.2006 and 13.07.2006, inter alia, on the grounds that the said orders are against the law and facts of the case; Respondent No. 1 has been negligent in pursuing his case hence he was not entitled to any discretionary relief; the application of Respondent No. 1 for restoration of the suit was time barred; the learned Courts below have ignored the provisions of. law as enshrined in Order IX of the C.P.C; there is misreading and non-reading of the material available on the record; the learned Courts below have committed illegality and material irregularity in passing the impugned orders.
4. The learned counsel for the petitioner besides agitating the above grounds has argued that under the provisions of the High Court's Rules and Orders, Volume-V, Chapter 1-E, Paras 2 & 4 applications in which averment of facts is made is to be duly supported by an affidavit.
Respondent No. 1 did not support his application for restoration of the suit with any affidavit; as such there was no application in the eye of the law. Further submits that the application was hopelessly time barred as under Article 163 of the Schedule to the Limitation Act, 1908, only 30-days are provided to a party to have its suit restored in case of dismissal in default and/or dismissal for non-deposit of process fee. No application for condonation of delay as envisaged under Section 5 of the Limitation Act, 1908, has been filed. Even otherwise, the application does not conform to the law on the subject no sufficient cause has been shown. The order of the learned trial Court was contingent in its nature. The suit of Respondent No. 1 had been restored subject to payment of costs, Respondent No. 1 to date has not paid the costs as such the order 'has lapsed hence question of restoring the suit does not arise.
5. The learned counsel for Respondent No. 1 controverts the stance of the learned counsel for the petitioner. Submits that the order of the learned trial Court was void ab initio. It is settled law that if the basic order is illegal then the superstructure built thereon automatically fails to submit that limitation does not run against void orders. Even otherwise no provision of the Limitation Act applies to the case. No vested right has accrued to the petitioner. Contends that since the suit was dismissed in default at the stage where the petitioner was yet to enter appearance hence it was a matter between the Court and Respondent No. 1. The learned trial Court erred. in giving notice to the petitioner at the time of restoration of the suit.
6. Contends that the orders whereby the suit of Respondent No. 1 was dismissed was illegal and void also for the reason that the provisions of Order XLVIII, Rule 1 of the C.P.C. were not followed by the learned trial Court whilst ordering issuance of summons to the petitioner. The learned trial Court was required under the law to fix a time limit for deposit of the process fee. In the instant case it was not done. Contends that this is a mandatory provision as in case of failure of deposit of process fee penal consequences are to follow. As the learned trial Court has not followed the mandatory provision hence the order is void. Relies on AIR 1924 Nagpur 298 & AIR 1924 Nagpur 271.
7. The learned counsel for Respondent No. 1 defends the impugned orders on the above premise.
8. I have heard the arguments of the learned counsel for the parties and have also examined the record with their able assistance. One fact is crystal clear that whilst ordering issuance of summons in the name of the petitioner the learned trial Court at no stage fixed the time period for depositing the process fee. The provisions of Order XLVIII, Rule 1 of the C.P.C. envisage that:-- "1. Process to be served at expense of party issuing.--(1) Every process issued under this Code shall be served at the expense of the party on whose behalf it is issued, unless the Court otherwise directs.
Costs of service--(2) The Court-fee chargeable for such service shall be paid within a time to be fixed before the process is issued."
I, therefore, agree with the arguments of the learned counsel. for the respondents that fixation of time is a mandatory requirement of law. If the process fee is not deposited penal consequences follow under Order IX Rule 2 of the C.P.C., in that the suit of a party is liable to be dismissed for non- deposit of process fee. The learned counsel for the respondents has relied on the judgments reported as "Arodhyaprasad v. Secretary of State" AIR 1924 Nagpur 298 & "Pandu and another v.
Rajeshwar and others" AIR 1924 Nagpur 271, wherein it has been, inter alia, held that an order of a Court adjourning a case without fixing a time for depositing of process fee followed by an order of dismissal for want of prosecution is bad and would be liable to be set aside.
9. By following the above precedents I hold that the learned trial Court erred in not fixing a time for deposit of the process fee, Respondent No. 1, therefore could not have been non-suited. In view thereof the order of the learned trial Court dated 18.03.2003 being illegal and void, no limitation would run in the case. Even otherwise, the law favours adjudication of cases on merits and technicalities should not be allowed to stand in the way of substantial justice.
10.As to the contention of the learned counsel for the petitioner that no affidavit was appended to the application in question suffice it to say that in his reply the petitioner also did not file a counter affidavit.
11.Under the circumstances, I do not find any infirmity in the impugned orders. This petition, therefore, fails and is dismissed accordingly.
12.Before parting with the judgment, it is observed that the suit of the Respondent No. .1 is still pending. The learned trial Court is directed to expeditiously dispose of the same but no later than 30.04.2011. Respondent No. 1 is directed to pay the costs as determined by the learned Courts below before any further proceedings are held before the learned trial Court.