' ZAFAR AHMED RAJPUT, J.--- Through this civil revision under section 115, C.P.C., the applicants/plaintiffs have impugned the order dated 11-11-2009, passed by the learned Additional District Judge Moro, District Naushahro Feroze whereby, dismissing the Civil Revision No, 36 of 2006 maintained the Order dated 7-9-2006, passed by the learned Senior Civil Judge, Moro on application under Order IX,Rule 9, C.P.C. In New Suit No,55 of 2001.
2. Briefly stated facts of the case are that the applicants/plaintiff filed a civil suit for declaration and permanent injunction in the Court of Senior Civil Judge, Moro with the following prayers:---
(a) That it be declared that the order dated 27-8-1993 passed by defendant No,1 and the Order dated 21-3-1994 passed by defendant No,2 (Mr. Saleem Ahmed Memon) and the Orders passed in Review Nos.89/1994 and 81/1994 dated 16-8-1995 respectively passed by defendant No,1 (Imdadullah Unar) are mala fide, capricious, fanciful, and the plaintiffs continue to be legal and valid lessee of the above land, under subsisting leases.
(b) That permanent injunction be issued against the defendants restraining them from implementing or enforcing the aforesaid orders against the plaintiffs by disposing of the above land to any other person or interfering with the possession of plaintiffs on the above land, directly or indirectly by themselves or through their subordinates or agents in any manner.
(c) To award the cost of the suit be born by defendants Nos.7 to 14.
(d) Any other relief, which the honorable Court deems fit be awarded to the plaintiffs.
3. The private defendants/respondents filed their written statement and application under Order VII, Rule 11, C.P.C. After framing of issues the matter was fixed for evidence of applicants. During pendency of the suit, one Gul Bahar son of Rabban and Ranjho Khan son of Ahmed Khan filed an application under Order I, Rule 10, C.P.C. For impleading them as party in the suit. The applicants/ plaintiffs filed their objections on the said application. Thereafter the matter was fixed for arguments on both applications i,e, application under Order VII, Rule 11, C.P.C. And under Order I, Rule 10, C.P.C. However, the learned trial Court, vide his order dated 16-11-2002, dismissed the suit of applicants/plaintiffs in default for their non-appearance. Being aggrieved of said order, the applicants filed application under Order IX, Rule 9, C.P.C. For setting the dismissal aside and restoration of the suit. The defendants/respondents Nos.8 to 13 filed their objections to the said application. After hearing the arguments, the application under Order IX, Rule 9, C.P.C., filed by the applicants/plaintiffs was dismissed by the learned trial Court, vide order dated 7-9-2006. Against the said order, the applicants filed Civil Revision No,36 of 2006 in the Court of District Judge, Naushahro Feroze. (Miscellaneous Civil Appeal under Order XLIII, Rule 1(c), C.P.C. Lies against the order of rejection of application under Order IX, Rule 9, C.P.C. But due to technical mistake the applicants/plaintiffs filed Civil Revision, which can be treated and convert in to a Civil Appeal). The said civil revision was heard and dismissed by the Additional District Judge, Moro vide order dated 11-11-2009. Hence this civil revision.
4. Heard the learned Counsel for the parties and perused the record.
5. The learned counsel for the applicants has contended that the learned trial Court as well as appellate Court failed to observe the legal position that the matter was fixed for hearing of application under Order I, Rule 10, C.P.C., filed by the applicants/intervener and application under Order VII, Rule 1, C.P.C., filed by the respondents/ defendants on 16-11-2002, when the matter was fixed none of the parties were present, therefore, in such circumstances the above said applications should have been dismissed instead of dismissal of plaintiffs' suit as the plaintiffs suit was not fixed for hearing as it is settled principle of law that a suit cannot be dismissed when not fixed for hearing. He has further contended that the valuable right of the applicants is involved in the matter and in case they are technically knocked out they would highly be prejudiced.
6. The learned counsel for the private respondents as well as A.A.-G. Have not controverted the said contention of learned counsel for the applicants with regard to fixing of two above said civil misc.
Applications for hearing on 16-11-2002.
7. I deem it appropriate to reproduce the impugned Order dated 16-11-2002, passed by the learned trial Court, as under:- "Case called in open Court. Plaintiffs called absent, their counsel Mr. Abdul Ghafoor Kalhoro also called absent. No intimation made to this Court.
' Defendants Nos.1 to 6 already proceeded ex parte, while defendants Nos.7 to 14 also called absent.
Mr. Ghulam Mustafa Buriro Advocate for the defendants Nos.7 to 11 and Mr. Mohammad Qasim Tunio Advocate for the defendants Nos.12 to 14 also called absent. No intimation made to this Court.
' The present suit is fixed for the hearings of application under Order I, Rule 10, C.P.C. And under Order VII, Rule 11, C.P.C. At Exhs.109 and 149 respectively.
' Even otherwise, the issues were framed in the present matter on 19-1-1997 at Exh.37 but the matter has not yet proceeded due to the lack of the interest of the parties. On the other hand this ' Court has to decide the matter expeditiously by December, 2002, in compliance/directions of the honorable High Court of Sindh Karachi bearing letter No,4412/MIT/FUNCTIONS/ SUBORDINATE COURTS 2002 Dated Karachi 23rd August, 2002."
' In view of the aforesaid position I am of the view that this Court has no alternate except to dismiss the suit under Order IX, Rule 3, C.P.C. Consequently, present suit stands dismissed under Order IX, Rule 3, C.P.C, with no order as to costs."
8. Order IX, Rule 3 of C.P.C. Provides that where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed. From perusal of the said Order of learned trial Court it is crystal clear that on the alleged date of hearing the suit was not fixed for hearing but two miscellaneous applications i,e, under Order I, Rule 10 of C.P.C., filed by the applicant/intervener and application under Order VII, Rule 11 of C.P.C., filed by respondents/ defendants were fixed for hearing, therefore, the most said applications ought to have been dismissed for non-prosecution by the learned trial Court and the suit should have been fixed for hearing. It is, thus, seen that the learned trial Court and the learned appellate Court have proceeded in the matter without applying judicious mind.
9. I do find that both the learned Courts below have acted with material irregularity in exercise of their respective jurisdiction. This civil revision is accordingly allowed. Both the impugned orders are set aside. The application filed by the applicants for restoration of their suit under Order IX, Rule 9 of C.P.C. Is allowed. The result would be that the Suit bearing No, Old 67 of 1995 New No, 55 of 2001 shall be deemed to be pending before the learned Senior Civil Judge, Moro, who shall commence proceedings from the stage, they were at the time when the said suit was dismissed in default, which has since been set aside. Civil Revision stands allowed with no order as to costs.
10. This case has already exhausted lots of time; therefore, the parties are directed through their counsel to appear before the learned Senior Civil Judge, Moro on 13-1-2014, who shall expedite the civil suit and dispose it of within three months from said date.
11. Office is directed to forward the copy of this judgment to the Court of learned Senior Civil Judge, Moro. The compliance report of the order may be intimated to this Court through Additional Registrar of this Court.