' MUSHIR ALAM, C.J.--Present appeal arises out of an order dated 7-9-2007 passed on C.M.A. No,386 of 2007 under Order IX, R.9, C.P.C. Read with Section 151 C.P.C. Seeking recall of the order dated 11-8- 2004 whereby number of applications fixed for hearing some 7 and at serial No,1 application was fixed for orders. The learned Bench in chamber in consideration of the fact that since the counsel representing the applicant has pleaded no instructions though the. Court observed that the Power of Attorney executed in favour of Dilshad Khan to represent the case of appellant Pehelwan Goth Welfare Council has since been cancelled, the Court observed that since Imran Khan Bangash is not present and there is nobody now to proceed with this matter, these applications are dismissed on default along with the Suit.
' Learned Counsel for appellant contends that since the Suit was dismissed in absence of the representative of appellant's council they are not aware of the dismissal nor the counsel intimated the Welfare Council of such dismissal and when nothing was heard investigation and inquiry was conducted and it revealed that not only the applications but the Suit was also dismissed therefore impugned order' necessity filing of the subject application on 10-1-2007. When the learned counsel for appellant was confronted that application under Order IX, Rule 9, C.P.C. Is governed under Article 163 of the Limitation Act it was alleged that since very order was void ab initio, the Order IX, Rule 9, C.P.C. Would not be attracted but section 151, C.P.C. Which is regulated by Articles 181 and not 163 of Limitation Act 1908. In support of his contention reliance was placed on NAZIR AHMAD SIDDIQUI AND OTHERS v. DISTIRCT JUDGE (WEST) KARACHI AND. OTHERS (1989 M LD 1873), FAQIR ALAM AND 10 OTHERS v. AJAB KHAN AND 15 OTHERS (1986 CLC 1320) and MUHAMMAD AFZAL v. SMALL BUSINESS FINANCE CORPORATION AND 4 OTHERS (1997 CLC 1080). He has further placed reliance on QAZI MUHAMMAD TARIQ v. HASIN JAHAN AND 3 OTHERS (1993 SCM R 1949) to urge that when applications are fixed for order and hearing and none appears to proceed with the applications then Court could dismiss the applications for non-prosecution and not Suit and this is the precise contention of the learned counsel for appellant that the Suit was not fixed for issues, evidence or otherwise hearing of the main case. Only Misc. Applications were fixed, therefore, if at all Court, could have dismissed the applications and not the Suit and in such cases Limitation would be governed under Article 181 of the Limitation Act.
' Mr. Manzoor Ahmed learned counsel for CDGK contends that the order impugned is well reasoned and no interference is called for. It was urged that matter was fixed on 11-8-2004 when none appeared for the appellant/plaintiff and the counsel then representing pleaded no instructions. It is contended that Imran Khan Bangash now claiming to be representative of the appellant Welfare Council was fully aware of the matter, ought to have appeared. It was further contended that the Suit was filed by one Dilshad Ahmed Khan on behalf of the Welfare Council whereas_Appeal has been filed by one Imran Khan Bangash, therefore, the Suit otherwise has been rightly dismissed.
According to Mr.Manzoor Ahmed learned counsel for CDGK no person could file Appeal other than the person who had filed the Suit. He therefore prays for dismissal of the appeal.
' Mr. Ahmed Pirzada learned counsel appearing for Board of Revenue (Respondent No, 3) does not support the impugned order.. He is also of the view that at the best applications fixed for hearing could have been dismissed and not the entire Suit.
' We have heard the arguments and perused the record. It seems that on 11-8-2004 when the subject matter was fixed before the learned Single Judge following matters were fixed for consideration;- "1. For orders on C.M.A. No, 2263 of 2004.
2. For hearing of C.M.A. No, 4983 of 2002 (U/S 151) Intervener.
3. For hearing of C.M.A. No, 2429 of 2002 (U/O I, R 10) Def.
4. For hearing of C.M.A. No,1651 of 2001 (U/S 151, C.P.C. Plaintiff).
5. For hearing of C.M.A. No, 488 of 99 (U/O 7, R 11) Def 5 & 6.
6. For hearing of C.M.A. No, 3473 of 98 (U/O 39 R 4). Intervener.
7. For hearing of C.M.A. No, 4563 of 97 (U/S 151) Del 14.
8. For hearing of C.M.A. No 4028 of 97 (11/0 39, Rr.1 & 2) Plaintiff. and the learned Bench passed the following order:- "A number of applications are fixed for hearing. Mr. K.A. Wahab learned Counsel for the plaintiff who was authorized to proceed with this Suit by Dilshad Ahmed as General Attorney of Pehalwan Goth Welfare Council pleads no instructions. Even otherwise there is an application on record (C.M.A. No, 2263 of 2004) filed by one Miran Khan Bangash claiming him as Chairman of Pehalwan Goth Welfare Council and stating therein that he has cancelled the attorney power in favour of Dilshad Ahmed Khan and consequently the Vakalatnama signed by him. Also stands cancelled.
Since the said Imran Khan Bangash too is not present and there is nobody now to proceed with this matter hence these applications are dismissed in default along with the Suit.
' From the perusal of the above order it is abundantly clear that the Court was fully cognizant of the fact that number of applications are fixed for hearing. Court also noted that one Imran Khan Bangash had filed an application informing the Court that the Power of Attorney executed in favour of Dilshad has since been withdrawn and so also the authority of the counsel appointed by him has come to an end yet the Court proceeded to dismiss the applications along with the Suit. It may be observed that application C.M.A. No,2263 of 2004 fixed at serial No, I for orders clearly shows that the Chairman of the appellant's Welfare Council had laid information before the Court that said Dilshad does not any more enjoy the blessing of the Welfare Council/appellant and so also the learned Advocate ought to have refrained from making such statement of no instructions. On the application fixed at serial No,1 for orders either this Court ought to have issued notice of intimation to Mr.Imran Khan Bangash and it seems that no such notice has been issued nor it is so pleaded by the respondents.
The crux of the case relied upon by the learned counsel for the appellant fully supports his contention. When the matter is fixed for hearing of the application the Court could attend only such applications, admittedly the Suit was not fixed either for settlement of issues nor it was fixed for evidence of plaintiff which may entail dismissal for non-prosecution. Accordingly fortified by the judgment relied upon by the learned counsel for appellant we are of the view that limitation in such cases where very foundation of the order could not be sustained and could not be treated as an order under Order IX, Rule 8, C.P.C therefore, restoration application would lie under section 151, C.P.C. And not under Order IX, Rule 9, C.P.C. And limitation governed by the residuary Article 181 of the Limitation Act, and not by Article 163 of the Limitation Act. For the foregoing reasons we would allow this appeal. The application C.M.A. No,386 of 2007 stands granted. Consequently order dated 11-8-2004 stands set aside. The matter will be deemed to be at the same stage as on 11-8-2004.
' Learned counsel for appellant undertakes to attend the proceedings and assures the Court that he shall not seek any adjournment, if at all any adjournment is sought by the appellant it should be visited by heavy cost. The learned Single Judge will try to dispose of all the pending applications preferably within a period of three months.