1. GHULAM MUSTAFA MUGHAL, J.---The captioned appeal by leave of the Court arises out of the judgment dated 28.4.2016 passed by the learned High Court in Civil Appeal No. 85 of 2012.
2. 2.The precise facts forming the background of the captioned appeal are that the appellants, herein, filed a suit for declaration in respect of the suit land in the Court of Senior Civil Judge, Kotli on 17.4.1998. Along with the suit an application for ad interim injunction was also filed. Against the decision on the application of ad interim injunction, an appeal was filed before the District Judge.
3. During the pendency of the appeal Mr. Mehmood Khan Malick, the learned Advocate representing the appellants died on 26.8.1999 and in his place Malick Muhammad Saleem, Advocate was engaged by the appellants. After hearing the parties, the learned District Judge remanded the case on 14.11.2002, which was received by the trial Court on 20.1.2003. On 20.1.2003 the case was adjourned to 30.1.2003 and from that date to 28.2.2003. On 28.2.2003, the Court directed the respondents to file written statement and the next date was fixed as 16.4.2003. On the aforesaid date, none of the parties appeared when the case was called, hence, the suit was dismissed in default. An application was filed by the appellants, herein, for restoration of the suit on 31.5.2004 stating therein that Mr. Mehmood Khan Mallick, Advocate was representing the appellants when the suit was filed before the Court. In connection with the order on the stay application an appeal was taken to the District Judge, Kotli and during the pendency of the appeal Mr. Mehmood Khan Mallick, Advocate died on 26.8.1999 and in his place Mallick Muhammad Saleem, Advocate was engaged by the appellants. The appeal was decided by the District Judge on 14.11.2002, the case was remanded to the trial Court and the file was received on 20.1.2003. From 20.1.2003, the case was adjourned to 30.1.2003 and then 28.2.2003. On 28.2.2003, the next date of hearing was fixed as 16.4.2003 and on that date the case was dismissed in default. It was further stated that the absence of the plaintiffs-appellants, was neither willful nor intentional, therefore, the suit may be restored. It was also claimed that the plaintiffs have not engaged any counsel for prosecution of the case before the trial Court after the remand, hence, it was imperative for the Court to issue a notice before dismissal of the case. The application was contested by the respondents by filing objections on 12.1.2010. The application was dismissed on account of limitation vide order dated 30.1.2010 by the trial Court. An appeal was filed against the order dated 30.1.2010 before the District Judge. The appeal was accepted and the case was remanded on 2.8.2011 with a direction to decide the application after recording the evidence. On 16.9.2011, the issues were raised in the light of the facts pleaded in the application as well as objection. The parties were directed to lead evidence and at the conclusion of the proceedings, the learned trial Court vide judgment dated 28.10.2011 dismissed the application on account of limitation and on the ground that no sufficient cause has been shown for restoration of the application. The order dated 28.10.2011 was challenged by the appellants, herein, before the District Judge, Kotli on 10.12.2011. After hearing the parties, the learned District Judge dismissed the appeal on 13.3.2012. The judgment dated 13.3.2012 was again challenged through an appeal before the Azad Jammu and Kashmir High Court on 6.6.2012, which met the same fate and was dismissed on 28.4.2016.
3. Mr. Imtiaz Hussain Raja, the learned Advocate representing the appellants, vehemently argued that during the pendency of the appeal before the District Judge, in the earlier round of litigation, the Advocate representing the appellants died and Mallick Muhammad Saleem, Advocate was engaged by the appellants for prosecution of the appeal. The learned Advocate argued that the learned District Judge remanded the case to the trial Court and the file was received in the office of the learned Senior Civil Judge, Kotli on 20.1.2003. The learned Advocate submitted that the case was adjourned on different dates and ultimately was dismissed on 16.4.2003 in non-prosecution.
4. He argued that after the receipt of file on 20.1.2003, the learned Senior Civil Judge has not issued any notice to the plaintiffs appellants, hence, the dismissal of the case was ab-initio void and the application was liable to be granted under the inherent powers of the Court for which the limitation was three years as is provided by Article 181 of the Limitation Act. The learned Advocate submitted that neither the trial Court nor the District Judge has appreciated the controversy in its true perspective and have penalized the appellants for omission of the trial Court. The learned Advocate argued that even the learned High Court has not considered the controversy in legal fashion, which has resulted into erroneous conclusion, therefore, the, judgment of the learned High Court is also not sustainable in law.
5. 4.Conversely, Ch. Nazar Hussain Nazar, the learned Advocate appearing for the respondents, submitted that as the application filed on behalf of the appellants, herein, was time barred, hence, has rightly been dismissed by the learned Senior Civil Judge and the order of dismissal does not suffer from any legal infirmity. He argued that no sufficient cause for restoration of the suit was mentioned in the application rather the counsel for the appellants was present on 30.1.2003 and 28.2.2003, hence, it cannot be said that the appellants were ignorant regarding the date of hearing.
6. The learned Advocate argued that no notice was issued to the appellants because the judgment was announced by the District Judge in presence of their Advocate. He argued that the application is mala-fide because some of the parties have entered into compromise after taking money from the defendants. He submitted that as the appellants were negligent in prosecuting the case; therefore, they cannot be given any relief, for the lapse committed by them.
7. 5.We have heard the learned Advocates representing the parties and have perused the record with utmost care. The arguments raised on behalf of the parties need not to be attended because the appeal can be disposed of only on a very short point. In the present case, the suit was dismissed under Order IX, Rule 3, C.P.C. because both the parties were not present on the relevant dated i.e. 16.4.2003. The remedy is provided in the preceding Rule i.e. Rule 4 of Order IX, C.P.C., which reads as under:-- "4. Plaintiff may bring fresh suit or Court may restore suit to file.--- Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his not paying the court-fee and postal charges (if any) required within the time fixed before the issue of the summons, or for his nonappearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceedings with the suit."
8. A perusal of the above would show that a plaintiff whose suit is dismissed under Order IX, Rule 3, C.P.C., can bring a fresh suit, or he may apply to the Court for an order to set the dismissal aside.
9. The appellants, herein, have applied for setting aside the dismissal order after the prescribed period of limitation provided by Article 163 of the Limitation Act, 1908. From the record and evidence led by them, it is not proved that they had no knowledge about the dismissal of the suit. The reason listed by them that they had not been issued notice after the remand of the case from the District Judge, is also not proved. They have not got summoned the original file to prove the fact that Mallick Muhammad Saleem, Advocate, was not their counsel in the trial Court. Mallick Muhammad Saleem, Advocate has also not specifically denied that his presence on behalf of the appellants was not correctly marked. Moreover, an order passed under Order IX, Rule 4, C.P.C., regarding the restoration of the suit was not appealable, hence, the appeal before the District Judge and the second appeal before the High Court was not competent. In view of the above, the order passed by the learned Senior Civil Judge is hereby approved.
10. The upshot of the above discussion is that finding no force in this appeal, it is hereby dismissed with no order as to costs.