' IKRAMULLAH KHAN, J.---Petitioner has assailed herein through the instant civil revision the impugned judgment dated 9-3-2012 passed by Additional District Judge, XIV, Peshawar, whereby the appeal filed by respondent No,1 was accepted and thereby set aside the judgment dated 25-1- 2011 passed by the learned Civil Judge, XXIV, Peshawar, while the case of respondent was remanded back for further proceeding thereof in accordance with law.
2. Precisely stated facts are that respondent No, 1, instituted a declaratory suit against petitioners and rest of the respondents in regard to a house, fully described therein, within boundaries along with Survey No, 175/C.
3. The said suit was dismissed due to non-prosecution on 5-12-2008, by the learned Civil Judge, Peshawar. The respondent No, 1 (hereinafter respondent only) in order to restore the suit thereof, filed an application for the purpose before the learned Civil Judge thereof on 14-7-2009.
4. For the purpose of precision, avoiding herein, to discuss other proceeding conducted thereof in this regard, only relevant facts which led the petitioner to file the instant civil revision are to be reproduced herein.
5. The learned Civil Judge, after hearing both parties in connection thereof, the said application was dismissed by the learned Civil Judge vide his judgment dated 13-5-2009 being hopelessly time-barred in this regard.
6. The respondent preferred an appeal thereof before the appellate Court, and Additional District Judge, Peshawar vide his impugned judgment dated 28-9-2009, allowed the appeal and thereby the suit of the respondent was restored accordingly. Hence the petitioner filed the instant civil revision against the impugned judgment.
7. The learned counsel for the petitioner, contended that as the respondent and his counsel both were present before the Court in connection of the proceeding in the suit, on 24-10-2008 when case was adjourned to and date in Court was given to respondent thereof but she intentionally avoided to appear before the trial Court on the date fixed and as such her suit was dismissed accordingly. 30-days are provided therein under the provision of Article 163 of Limitation Act, 1908 for the purpose to enable a person to restore its suit, dismissed thereto due to non-prosecution, but respondent approached the trial Court thereof much later than the prescribed 30-days as provided under Article 163 of the Limitation Act, 1908, thereof.
8. He further stated, that valuable rights have been accrued in this regard in favour of petitioner and the suit dismissed thereof shall not be restored on the cost of accrued right of petitioner in this regard, against the established principle of law. He termed the judgment illegal and irregular, without jurisdiction, and passed by an unlawful authority and as the lower appellate Court exercised jurisdiction not vested in him thereof.
9. On the other hand, the learned counsel for the respondent, contended, that, once the Court opted to proceed further, in case, when no one was in attendance, then, in principle, he cannot dismiss the suit, in order to recall his previous order, in violation of principle of locus poenitentiae.
As the respondent case was not dismissed, on the date fixed thereof before the trial Court for hearing, and the trial Court opted not to proceed under Order IX, Rule 8 of C.P.C., and notice was issued for appearance against the respondent, in such view of the matter, the judgment of trial Court dismissing the suit was without jurisdiction and unlawful authority, rendered thereof its judgment void; no limitation runs against a void order and as such he supported the impugned judgment.
10. I carefully examine, the available record and anxious consideration was attended thereto, the arguments rendered thereof, by both the learned counsel.
11. The provision of C.P.C., 1908, contained there under Rule 8 of Order IX, regulate such like situation as in case in hand, which is to be reproduced for convenience as under but only the relevant parts concerned herein.
"PROCEDURE WHERE DEFENDANT ONLY APPEARS. 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 remedy provided thereof for restoration of a suit dismissed under Rule 8, Order IX, C.P.C., is provided there under the provision of Rule 13 of Order IX, C.P.C., which is as:-- ' Rule 13 of Order IX. Setting aside decree ex parte against defendant.---(1) In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an or to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: ' Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also.
' [Provided further that no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied, for reason to be recorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim.] [(2). The provisions of section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to applications under sub-rule (1)]
12. For such like application, ' Article 164 of Limitation Act, 1908, provides thereof 30-days for an application under Rule 13, Order IX, C.P.C.
13. In case in hand, the suit was dismissed thereof on 5-12-2008 while the application for restoration of the suit was filed on 14-11-2009 on behalf of respondent.
14. It would be not out of context, to give reference hereto, the order dated 18-11-2008 passed by the learned trial Court, when the respondent first defaulted her appearance as:--
(1) Defendants through counsel present. No one present on behalf of plaintiff, hence, notice be issued to plaintiff counsel for 5-12-2008.
15. By mere perusal of the order dated 18-11-2008, it is evident that though the case was fixed for hearing, but the learned Civil Judge, did not dismiss the suit, as required under the provision of Rule 8 Order IX, C.P.C. And opted thereof to proceed further in the matter, thereby notice for attendance was issued to the respondent/plaintiff or in alternative to her counsel.
16. The legal proposition arising herein is whether, without proper service of notice, the trial Court was competent to dismiss the suit, and whether it not tantamount to recall impliedly his previous order, issued thereof in order to procured the attendance of respondent.
17. The provisions of C.P.C. Contained there under Rule 8, Order IX, only invest the trial Court, with jurisdiction to dismiss a case on non-prosecution when, the case is fixed for hearing. A case, fixed for any other collateral purposes 'other than hearing shall not be dismissed under the provision of Rule 8, Order IX, C.P.C., and provision of Rule 2 or 3 of Order XVII would come into play thereof.
18. The word "hearing"' is not defined anywhere in the C.P.C., specifically, however different inferences may be taken thereof, but consistently followed view in this regard by Courts of this subcontinent time and again has explained and given expressions in regard to the word "hearing" used therein Rule 8 of Order IX, C.P.C. It was held by Lahore High Court in Manohar Dass v. Birandari Sheikhupurian (AIR 1936 Lahore 280).
19. Order XVII, Rules 2 and 3 of C.P.C. Apply to cases where the actual hearing of the suit has been adjourned and by the 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.
20. In the case of Mst. Barkat Ali v. Fateh Ali (PLD 1949 Lahore 432) it was held that:- "Where no investigation of any matter germane to the suit Sall 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 was no hearing of the suit on the date on which default of appearance was made."
21. In case of Balmokand Marwari v. Luxmi Narain Marwari (57 I.C. 748) Order XVII, C.P.C. Apply only to cases where the actual hearing of the suit had been adjourned and by the hearing of the suit they meant the hearing at which the Judge would be either taking evidence, or hearing arguments or would have to consider question relating to the determination of the suit which would enable him finally to come to an adjudication upon it.
22. In Mst. Akhtar Begum v. Muhammad Hussain and another (1981 CLC 146) it was observed as:-- "The word "hearing" in Order IX C.P.C. Have been used in a definite sense. It refers to determination of question, which result in final determination of the suit".
23. Though no provision of prior notice in case of default to dismiss the suit thereof provided under Rule 8 of Order IX, C.P.C. But, even then the Court in cases, where valuable rights in property are subject-matter, may not dismissed the suits without giving a prior notice in this respect to fulfil the commands of the constitution, giving thereof an opportunity of fair trial as enshrined thereof, under Article 10-A of the Constitution of 1973.
24. In Babar Hussain Shah v. Mujeeb Ahmad Khan (2012 SCMR 1235) it was held that;-- "Order of dismissal for non-prosecution has all the ingredients of an order passed in violation of the principles of natural justice.
' Although from the very inception the concept of fair trial and due process has always been the golden principles of administration of justice but after incorporation of Article 10-A in the Constitution of the Islamic Republic of Pakistan, 1973, vide 18th amendment, it has become more important that due process should be adopted for conducting a fair trial and order passed in violation of due process may be considered to be void".
25. From the perusal of the order sheet dated 18-11-2008 of the trial Court, it reveals that notice was given to respondent for appearance, then, the Court was bound to give attention to his order passed thereof, for the purpose of satisfying itself, in regard to service of notice upon the respondent.
26. In case in hand, though both the parties thereof recorded their evidence, on point of limitation but this aspect of the case, has been left unattended by either party as well as by the Court, that whether proper notice was issued as per direction of the Court thereof and duly served.
27. Without proper service of notice, the order of dismissal itself acquired the status of a void order.
28. No limitation runs against void order, which is the consistently followed principle of law in this regard in Makhdum Raju Shah v. Member, Board of Revenue (2011 YLR 1724) it was held that:-- "Order passed by Court not competent to pass is void order and bar of limitation is not applicable against void order".
29. As far as application under section 5 of the Limitation Act, 1908 is concerned, when, a Court in strive of to arrive to a just conclusions, in order to rendered justice, in case, when an order is void ab initio, then, the provision of proper written application in regard to condonation of delay could be dispensed of, and a verbal prayer in this regard be given effect to for safe dispensation of justice.
30. I fortify my view, by the judgment of Hon' ble Supreme Court of Pakistan delivered in Sheikh Ghulam Muhammad and another v. The Bank of Buhawal Pur Limited and 21 others, whereof it was observed that; "Oral request quite sufficient to consider the question of condonation of delay (and formal application in this regard or is not sine qua non for condonation of delay".
31. In Syed Nasir All v. Syed Ibne Ali and others (1981 SCMR 239) it was observed thereof as:--.
"Condonation of delay in a given case is a matter of discretion with forum bearing matter and such discretion cannot be interfered with unless exercised illegally, capriciously or arbitrarily".
32. In case, when a Court arrives thereof, that justice demanded condonation of delay in a given case, then formal written application for condonation of delay in this regard is not sine qua non f9r extending the discretion in this behalf.
33. Once an order is passed, and some steps were taken in pursuance of the order, then, the principle of locus poenitentiae would be applicable, and Court, whose actions were expected to be with in accordance of law, shall adhere to all the applicable principle of law in dispensation of justice.
34. As in the case in hand, irrespective of the fact, whether the application for restoration of the suit thereof was filed within time or otherwise but, the respondent was never served and apprised in regard to the date in Court for attendance thereof, her suit thereof could not be dismissed, under the provision of Orders IX, or XVI, C.P.C. In this regard.
35. In such view of the matter, I find no merit in the instant revision filed by petitioner against the impugned judgment, and as such accordingly dismissed.