AZHAR SALEEM BABAR, J.---This is an application for restoration/ re-admission of appeal dismissed for default on 22-9-2010. A perusal of the order impugned transpires that an appeal filed by Muhammad Khurshid Khan, the applicant herein was dismissed for non-prosecution, vide order dated September 22, 2010 where against, an application for restoration was filed on 13-9-2011.
2. I have heard the learned counsel for the parties and gone through the record of the case.
3. Sardar Muhammad Suleman Khan, learned Advocate appearing on behalf of the applicant has raised 2 points during his arguments.
(i) That the case was fixed for arguments by the order of Deputy Registrar for 22-9-2008 and it was not placed before the court until 22-9-2010, i,e, the date of dismissal of the appeal.
(ii) That the case fixed for arguments cannot be termed as "fixed for hearing", so the appeal could not be dismissed for non-prosecution.
' Learned counsel has placed reliance on Messrs Fateh Textile Mills Ltd. v. West Pakistan Industrial Development Corporation PLD 2008 Karachi 103 and Mst. Habiba Begum v. Haji lqbal-ud-Din (deceased) through his legal heirs 2012 M LD 1786.
4. On the other hand, Kh. Shahbeer Ahmed, learned Advocate for the non-applicant has described at length the interim orders of the court and stressed that on the relevant date, the case was fixed for final arguments when the applicant/appellant absented, so it was rightly dismissed for non- prosecution. He further argued that the instant application has been filed after a lapse of about one year from the date of the impugned order, which is badly hit by limitation. He has further argued that no plausible reason of delay in filing the application has been brought forward, nor an application for condo nation of delay has been filed.
5. A perusal of interim orders of this court in the light of arguments advanced at bar, transpires that the case was placed before the court on 28-3-2008 when record of the court was sent for and respondent No,2 was proceeded ex parte. Thereafter, interim orders have been recorded by Deputy Registrar and after necessary completion, the Deputy Registrar fixed the case for final arguments, vide order dated 22-9-2008. The case proceeded further for the purpose in the absence of any Judge in the court and the case finally came up before the court on a 22-9-2010 for final arguments by the order of Deputy Registrar. The point as to whether the Deputy Registrar is empowered to fix the case for hearing or not can be resolved by adhering to the High Court Procedure Rules, 1984. Rules 9(3) and (4) describes the functions of Deputy Registrar, when the case has been admitted for regular hearing. For convenience, both the sub-rules are reproduced hereunder:-- "9 (3) After case has been admitted for regular hearing, the Court Reader shall get the order signed by the bench concerned and send the file to the Deputy Registrar.
(4) The Deputy Registrar shall, on receipt of the file, cause the necessary entries to be made in the concerned register of institutions, issue notice to the respondents or such other party as may be required, send for the record of the case and take such other steps as may be necessary to carry out the orders of the Court or to render the case ripe and ready for hearing."
A bare perusal of sub-rule (4) shows that Deputy Registrar is entrusted with the function of issuing notices and sending for record o: the case and taking all necessary steps to carry out the orders of the court or to render a case ripe and ready for hearing. It is very much clear that Deputy Registrar is a person who has to place the file before the court, after necessary completion, for hearing of the case. Learned counsel for the applicant has cited 2012 M LD 1786 by contending that Deputy Registrar was not competent to fix the case for final arguments. In the above mentioned case, the case was adjourned through a note of Reader and Hon'ble High Court of Peshawar concluded that adjournment through a note of Reader couldn't be considered to be a case "fixed for hearing". It was also decided by the court that period of limitation for application of restoration of the suit in such eventualities would be governed by Article 181 and not by Article 163 of the Limitation Act.
Obviously, the case at hand is distinguishable as, in the above referred case, the case was adjourned through a note of the Reader who is not competent to fix the case for hearing under High Court Procedure Rules, so, the argument of the learned counsel for the applicant stands exhausted. (Under lining is mine)
6. Learned counsel for the applicant is of the view that date fixed for arguments does not fall within the definition of "hearing". Learned counsel has relied on PLD 2008 Karachi 103, in this regard. Facts mentioned in this case are that the case was fixed for final arguments when it was dismissed for non-prosecution. Learned High Court of Karachi, concluded that the court ought to have decided the case in the light of evidence brought on record, instead of dismissing the same for non- prosecution. Order IX, Rule 8 and Order VII, Rule 3 of the Code of Civil Procedure referred. This case is also distinguishable from the facts of the case at hand, for the reason that a suit filed in the trial Court was dismissed at the stage of final arguments in the aforementioned case. It is worth mentioning that evidence of the parties had been concluded and it was in these circumstances when the court remarked that the case could have been decided in the light of evidence on record.
But in the case at hand, it was an appeal before the High Court against a decree and judgment of District Court, wherein no evidence in support of the appellant or on behalf of respondents was on record. It would not be out of place to mention here that the appellant has to mention facts on the basis of which he wants to assail an impugned order and the relevant law is not obviously discussed in the memorandum of appeal. The appeal could not have been decided without arguments of the parties, in the case at hand. So, the court was left with no option but to dismiss the case for non-prosecution. It would be relevant to advert to Order XX, Rule 1 of C.P.0 here, which says that "On completion of evidence, the court shall fix the date, not exceeding 15 days for hearing of arguments of parties." It is evident from the perusal of Rule 1 of Order XX that the stage of arguments is definitely a stage of "hearing" in a case. So, the argument advanced on behalf of the applicant that the case fixed for arguments does not fall within the ambit of definition of "hearing", cannot be concurred with.
7.So far as, the point of limitation is concerned, it is true that no limitation runs against a void order but in the case at hand, order of the court has been issued in accordance with law, which cannot be termed as "order void abs initio". The applicant has filed the instant application for restoration/re-admission of appeal, after a lapse of around 1 year, which is hopelessly time barred.
I am aware of the facts that a case should be decided on merits instead of technicalities but it is equally true that the law does not support a sluggish person who lies asleep over his rights. Order IX, Rule 8 of C.P.C requires that 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. The order impugned has been passed, keeping in view the provisions of law and no legal infirmity is found therein. The application for restoration/ re-admission of appeal, in the circumstances is, therefore, dismissed with no order as to costs.