1. ' Raj Muhammad Khan father of Akhtar Begum Plaintiff-petitioner .Old the suit land measuring 9 kanals 9 marlas comprising Survey No, 451 situated in village Kartoot, Tebsil Kotli including the house, for a sum of Rs, 25,000 in favour of Muhammad Hussain and Said Muhammad respondents, on 11-8-1973. Mst. Akhtar Begum pre-emptor the sale by instituting suit on 11-7-1974. Defendant No. 1 was served and was represented through counsel on 6th of August 1974. He was directed to file written statement on the next date. Defendant No, 2 was not served. Fresh notice was issued and case was adjourned to 14th of October 1974. This was a holiday and on the next day, Sub-Judge was on leave and case was adjourned to 10th of November 1974. Various adjournments were made in order to effect service on defendant No, 2 on 7th of June 1975, defendant No, 2 was reported to have gone to England. On this date the Sub-Judge was on leave. On the next three dates also Presiding Officer was on leave. On 27th of October and 27th of November 1975, counsel of the parties were present, while the Sub-Judge was not present and case was postponed to 24th of December 1975. On this date counsel for the plaintiff was absent, consequently notice was issued to him for 30th of December 1975, On 30th of December 1975, no one appeared for plaintiff, while defendant's counsel was present. The suit was dismissed for default. It is of importance to note that no notice was served on plaintiff or her counsel for their appearance on the aforesaid date. An application for restoration was moved by Abdur Razaq, brother of the plaintiff, on her behalf, on 25- 1-1976. Another application for restoration of the suit was instituted by the petitioner on 6-3-1976.
2. Application made on behalf of the petitioner, by her brother was rejected on 20-9-1976, on the ground that Abdur Razaq had no locus standi to present the application. The second application dated 6-3-1976 was also rejected on 28-2-1978 on account of failure to show sufficient cause for absence as well as on the ground of limitation. The petitioner went in appeal before the District Judge, Kotli. The learned District Judge agreed with the finding of the trial Court and rejected the appeal on 26-4-1978.
3. ' Mr. Manzoor, Ahmed, learned counsel for respondents, raised a preliminary objection that no second appeal could lie in the present ease.
4. ' However, he- agreed that in cane, in view of the circumstances under which the suit was dismissed for default, it is concluded that the provisions of Order XVII, rule 2 and Order IX, rule 8, C. P.
5. C. Are not attracted, this Court is competent to treat this appeal as Revision. He further agreed that on treating the appeal as revision, the Court enjoyed vast powers to scrutinise the findings of the Courts below. On careful examination of the facts of the case and law, I am 'persuaded to hold that the provisions of Order XVII, ride 2 and Order IX, rule, 8 are not attracted in the present case. No appeal. Lies against the impugned order. Hence, this appeal is treated as revision. The reasons advanced in the succeeding paragraphs shall justify this conclusion.
6. ' Mr. Manzoor Ahmed: took me through the evidence of the petitioner, and emphasised that that petitioner failed to show efficient cause for her absence. He further urged that the application for restoration was beyond time. He argued that the delay could not be condoned, as section S of the Limitation and was not available in the case. He supported the finding of the Courts below. It is obvious that if it is held that provisions of Order IX, rule 8, are applicable to the case, there can be no opinion other than one given to the District Judge and the trial Judge.
7. ' Order XVII, retie 2 is reproduced as under :- 'Where, on any day to which the hearine of the suit is adjourned, the parties or any of them fail' to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such order as it thinks Eq."
8. ' Order IX rule 8 provides; "Where the defendant appears and the plaintiff' does not appear when the snit 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."
9. ' It is evident from the aforesaid provisions that dismissal of the suit can be made, in the event the plaintiff i,e, absent on the day to which nearing of the suit is adjourned and where plaintiff does not appear, when the suit is called on for hearing, first of all, it is to be examined, what is meant by "hearing of the suit" Black's, Law Dictionary, word "hearing" has been defined as "the trial of the case, including introduction of evidence, arguments of council and decree of Court". According to Whyton's Law Lexicon, "Hearing" means, investigation of a controversy". In Chambers Twenteeth Centry Dictionary, it is defined as "judicial investigation, and hearing of arguments especially of trial without a jury". According to Oxford Dictionary, hearing means "to listen jedicially in a Court of law".
10. The words 'hearing of the suit' have been considered and given meaning in various judgments. In a Full Bench case of this Court Muhammad Din v. Zabardasi Khan (1), Mr. Justice Muhammad Yusuf Saraf, who wrote the judgment observed as; "The word 'hearing' has received a restricted meaning perhaps out of the natural anxiety of Courts to ensure that cases are decided on merits. The code has neither defined the term nor does it at the same time differentiate between a date when, say, evidence is to (1) 1) D 1972 Azad & K 7 be recorded or arguments are to be heard or issues are to be framed as against those for which, say, the defendants are summoned or the case is otherwise adjourned. In the Code itself every adjourned date has been termed as a date of hearing. It may be emphasised that the Court has not to hear the plaintiff or the defendant but it has to hear the case. Thus in a sense the coming up of the case before the Court on any adjourned date of hearing cannot be termed anything but its hearing. It was contended that to interpret the word 'hearing' in such a way may lead to harsh results but it appears that it is not so because the plaintiff whose suit is dismissed for default is always at liberty to show that his absence was due to sufficient causes and Courts have generally been liberal enlarging the scope of such causes."
11. ' That case was adjourned to 3-8-1970, for written statement. On that date, written statement was not presented but plaintiff was absent and the suit was dismissed for default. Application for restoration was made on the of October 1970, but it was dismissed on the same day. The teamed Judges held that a date of dismissal of the suit was a date of hearing of the suit.
12. ' In Ghulanz Farid-Muhammad Lag!" v. Central Bank of India Ltd., Lahore (1), suits of the parties were consolidated and proceedings were adjourned to 8th and 14th of January 1953, for evidence of the parties. Meanwhile, the cases were transferred to another Court, which issued notice on 3rd of November 1953, with the direction that parties or their counsel should attend the Court on 8th of November 1952. Notice was served on the counsel of the plaintiff-Bank who failed to appear in the Court. Consequently suit of the plaintiff-Bank was dismissed for default. An application for restoration dated 30th of December 1952, was presented on 2nd of January 1953. The application was resisted on two grounds (i). That it was barred by limitations (2). That there was no sufficient cause for the restoration of the suit, Mr. Justice M. A. Soofi adopted the view as under :- "(a) Civil Procedure Code (V of 1908), Order IX, rule S and Order XVII, rule 2-Hearing-Meaning--Case fixed for appearance of parties simply for changing a previously given date for evidence-Absence of plaintiff-Case cannot be dismissed for default-Order of dismissal without jurisdiction- Application for restoration of suit lay under S. 151 and not under Order IX, rule 8 and 9-Limitation Act (IX of 1908), First Schedule, Arts. 163 and 181."
13. ' It was held that the date on which the suit was dismissed, was not a date of hearing of the suit provisions of rule 8 were not applicable. Article 181 of Limitation Act and not 163 was made applicable.
14. ' In Men. Barkat Bibi v. Fateh Ali (2), various dates were fixed for receiving record from High Court.
15. Ultimately, record was received on 29th of May 1946, On that date plaintiff was absent.
16. Consequently suit was dismissed for default. Mr. Cornelius, learned Judge held that 29th of May, was not a date of hearing in the suit. He observed as follows :- "Where no investigation of any matter germane to the suit falls to be performed by the trial Court and the only order which it could possibly have made was an order of an administrative nature, held that the order dismissing the suit was without jurisdiction since there {{FOOT NOTE}}
(1) PLD 1954 Lab. 574 (2) PLD 1949 Lab. 434 {{FOOT NOTE}} ' was no hearing of the suit on the date on which default of appearance was made."
17. ' In Nathu Singh v. Chhattun and others (1), date was fixed for hearing of a preliminary issue. Parties absented and the suit was dismissed for default. It was held that an adjournment for considering preliminary issue, was not the date of hearing of the suit.
18. ' In Grimault & Co. v. Charan Das & Sons (2), on an application for amendment of issues, the case was adjourned for arguments on the application. On the adjourned date parties failed to appear and suit was dismissed. It was held that the date on which suit was dismissed was not a date for hearing of the suit. The Court could only dismiss the application. In Mahesha Mal Dayal Das v.
19. Muhammad Jamil (3), the order of dismissal of the suit was declared ultra vires, as the date on which suit was dismissed was not a date fixed for hearing of the suit. In Sheikh Muhammad v. Mst.
20. Rukmina Kunwar (4), 3rd of June 1944, was fixed for ascertaining the result of another connected case. On that date plaintiff was absent and suit was dismissed for default. Application for restoration was made on 12th of July 1944. When matter came up before the Division Bench, it was held that 3rd of June was not a date fixed for hearing of the suit and, therefore Order IX, rule 8, C. P.
21. C. Had no application to the case.
22. ' In Ramswa roop Reghuwardayal and others v. Mata Parsad Prabhudayal (5), it was held that in Order XVII, rule 2, hearing occurs only when Judge is taking evidence or hearing arguments or otherwise coming to the final adjudication of the suit and not when the Court considered merely interlocutory matters.
23. ' In Manohar Das v. Birandasi Sheikhupurian (6), it was held as under :- "Order XVII, rules 2 and 3 apply only to cases where the actual hearing of the suit has been adjourned and hearing of the suit is meant the hearing at which the Judge would be either taking evidence or hearing arguments or would have to consider questions relating to the determination of the suit which would enable him finally to come to an adjudication upon it. But in cases where it was clearly never intended that there should be a hearing of the suit in the ordinary sense of the word, but merely some interlocutory matter decided between the parties as to the future conduct of the suit, the provisions of these rules have no application."
24. ' In PLD 1970 Lab. 470, Mr. Nasim Hasan Shah, J. And PLD 1971 Lah. 747, Mr. Karam Elahi Chauhan, J., also followed the view, held in PLD 1954 Lab.
25. 575.
26. It is clear from the aforesaid observations that the words "hearing of the suit" have been used in a definite sense. It refers to determination of questions, which result in final determination of the suit.
27. This includes, filing of written statement, recording of evidence, hearing of argument and rendering judgment. In Muhammad Din's case, Full Bench adopted liberal and broad meaning of the term and stretched it to include even filing of written statement. The view held in Muhammad Din's case, even does no cover the impugned order. {{FOOT NOTE}}
(1) AIR 1929 Lab. 830 (2) AIR 1934 Lah. 237
(3) PLD 1929 Lah. 374 (4) AIR 1946 All. 506
(5) AIR 1952 Madh. Pra. 8 (6) AIR 1936 Lah. 280 {{FOOT NOTE}} ' In the present case, the date in question was fixed for notice to the counsel of the plaintiff. There is nothing on record to show issuance of notice or its service on the counsel. This being the position, it cannot be held that 30th of December was a date of hearing of the suit. Provisions of Order XVII, rule 2 and Order IX, rule 8 are, accordingly not applicable to the case. Learned District Judge failed to examine the case in the light of the principle discussed above. Therefore, limitation of 30 days provided under Article 163 of the Limitation Act would not control limitation in the present case.
28. Evidence of plaintiff relating to sufficient cause for restoration also lost its importance, in view of the aforesaid considerations.
29. ' Therefore, I am persuaded to accept the petition with costs. The judgment and order of the Courts below are set aside. The case shall be restored on the file of the trial Court, which shall proceed under law. . Case restored.