CH. MUHAMMAD MASOOD JAHANGIR, J. Verily, on 19.04.2006 the petitioners instituted suit for specific performance of agreement to sell dated 02.09.2003 (Exh.P1) asserting that three sisters and a brother (defendants) had jointly agreed to sell their property and out of them, three vendors (one brother and two sisters) had already executed sale deed(s) in favour of the petitioners, however Mst. Yasmeen, respondent No.1/ defendant No.1 solely denied to perform her part of said agreement. The refusal on her behalf compelled the petitioners/ vendees to approach Court of law via afore-noted suit seeking decree for specific performance of said sale contract. The respondent No.1 solely contested the suit by filing written statement.
Owing to divergent pleadings of the parties, learned Trial Court settled issues enabling them to lead evidence. The record stands for that during trial proceedings, respondent No.1 did not appear before learned Civil Court on 07.05.2009, consequently she was proceeded against ex parte. The respondent No.1/defendant not only made application for recalling of ex parte proceeding, but preferred appeal/revision petition as well, however both of those remedies being regretted went futile and said orders having not been challenged any further attained finality. As a matter of fact, evidence of the petitioners/plaintiffs had been concluded on 06.05.2010, however while hearing aforenoted appeal/revision petition of respondent No.1, suit file was summoned by the Appellate/Revisional Court, which after decision was received and placed before learned Civil Court on 25.07.2011, when allegedly clerk of counsel for the petitioners appeared, but as local Bar was observing strike, thus case was adjourned to 07.09.2011. At this date, neither anyone on behalf of the petitioners/plaintiffs nor defendant No.1 or her counsel put their appearance, thus resulted in dismissal of suit for non-prosecution. The application made for restoration of the lis was declined vide order dated 14.05.2013 and appeal dismissed through decision of 26.02.2015 as well. To call in question legality and validity of the said orders, this Civil Revision was filed.
2. It is contended by learned counsel for the petitioners that co-vendors (one brother and two sisters of respondent No.1) while executing sale deeds had already performed their part of agreement, that in said situation, respondent No.1/defendant No.1 though filed written statement to contest the suit, yet she had no defence and that is why did not pursue the case diligently, therefore was proceeded against ex parte, which still is intact. Mr. Tahir, worthy counsel for the petitioners further pleaded that his clients had not only already examined the entire evidence, rather case at their end was also argued on 11.05.2010 as well as on 23.07.2010, thus suit being ripe for decision subsequently could not be dismissed for non-appearance. He further argued that in such like situation, period of three years provided under residuary Article 181 of the Limitation Act, 1908 was to be applied, but despite that petition for restoration made within four months of the order of dismissal-in-default was erroneously declined while declaring it to be time barred. In response, Mr. Riaz Karim Qureshi, ASC/worthy counsel for respondent No.1 while supporting impugned unanimous orders sought for dismissal of petition in hand.
3. Arguments heard, available material consulted.
4. The record stands for that after recording evidence of the petitioners/plaintiffs at their end, the matter was argued on two occasions, but suit file was requisitioned by the Appellate Court to decide appeal/revision petition preferred by respondent No.1 (for setting aside of ex parte proceeding), which after decision of said appeal was sent back to Trial Court, without fixing any date for appearance of the parties. On receipt of suit file, learned Trial Court on 25.07.2011 while marking presence of clerk of counsel for the petitioners/plaintiffs adjourned it to 07.09.2011 for addressing/ hearing arguments. Leaving it aside that presence of the clerk marked by the Court mattered or not, the suit was postponed, when entire evidence was available with the Court to make final decision after going through the same. At such stage while attracting provisions of Order IX CPC, the dismissal of suit for default was not justified. See "Muhammad Haleem and others v. H.H. Muhammad Naim and others" (PLD 1969 Suprem e Court 270), wherein the apex Court concluded that when entire evidence had been led, then the lis could not be dismissed for non-appearance, rather sole course for the Court was to decide it on merits. This principle had already been laid down by this Court via decision reported as "Khan Ali Ahmad Khan Lodhi v.
Tabarak Ahmad Khan and others" (PLD 1960 (W. P) Lahore 129). The relevant conclusion therefrom is given below:- "In the case under consideration, it has been conceded that the entire evidence of the parties had been recorded. Thus the case was ripe for judgment. The learned Civil Judge could have taken action under Order XVII, Rule 3, but should not have dismissed the case under Order IX, Rule 8. 1, therefore, accept the petition, set aside the order of the learned Civil Judge and remand the case to him with a direction to proceed with the hearing of the suit in accordance with law from the stage at which it was dismissed under Order XVII rule 2 read with Order IX rule 8 of the Code of Civil Procedure."
The same view was subsequently reinforced by the superior Courts through judgments reported as "M/s Shafiq Cloth House and others v. Muslim Commercial Bank Limited" (1976 Law Notes (Supreme Court) 677), "Mst. Shamshad Begum alias Sharam Khatoon v. District and Sessions Judge, Dadu through Presiding Officer and 4 others" (1998 CLC 1128) and "Muhammad Hussain and 17 others v. Abdul Hameed and 4 others" (PLD 2019 Balochistan 106). The august Supreme Court even in case styled as "Allah Rakha and another v. Muhammad Yousuf and others" (PLD 1991 Suprem e Court 601) held that where a date was given for hearing of the arguments, but none of the parties appeared to address those, which inaction at the most, could lead to draw inference that they did not wish to argue the lis, thus Court had to consider that hearing would have been completed with the conclusion of evidence as hearing of arguments is not specifically provided in C.P.C. For ready reference, the pertinent conclusion therefrom in verbatim is given below:- "We observe that the same plea was raised before the learned Single Judge also but it was repelled relying on the judgment of the West Pakistan High Court in Abdullah and another v. Mian Tafazzul Hussain and another PLD 1961 Baghdad-ul-Jadid 58. In this case too, the question was whether the hearing of a case concluded only after the conclusion of the arguments and it was held that the hearing of arguments is not enjoined on the Court by the Civil Procedure Code, 1908 and all that can be said on the language used in Rule 2 of Order XVIII CPC is that if the parties or their counsel want to address arguments, the Trial Court has to give them an opportunity to do so, but the hearing of the arguments is not essential before disposing of the case. It was further held that if the arguments are not heard before the judgment is passed the hearing will, for the purpose of Order XXII Rule 6 of the Civil Procedure Code, 1908 be deemed to have concluded with the conclusion of the evidence of the parties, but if the arguments are heard, the stage at which the hearing concludes is the one when arguments conclude.
In this case, although a date was given for hearing of the arguments but none of the parties appeared to addres the arguments which showed that in fact they were not interested in addressing the arguments and, indeed, did not wish to address arguments. In these circumstances, the Courts below were right in considering that for the purposes of Order XXII, Rule 6, C.P.C. the hearing will be deemed to have concluded with the conclusion of the evidence of the parties in this case."
The same view was further adopted in case titled as "Mst. Shahida Zareen v. Iqrar Ahmed Siddiqui" (2010 SCMR 1119).
5. The argument of learned counsel for the petitioners that in such like situation, question of limitation in respect of application seeking restoration of suit was only relevant, it dismissal itself was proper, finds support from decisions reported as "Abdul Latif and another v. Ageel Ahmed"
(2006 SCMR 789), "Mst. Surava Parveen v. Mst. Rukhsana Hanif and others" (2012 SCMR 656) and "Messrs Transglobe Shipping Service v. WAPDA and another" (2016 SCMR 2023). Since impugned order regarding dismissal of suit for default was null and void, the appropriate Article applicable was 181 of the First Schedule to the Act ibid and in this view of matter, the application for re- admission of suit could not have been treated time barred, whereas Courts .below committed wrong in holding so through the orders attacked herein, which definitely cannot be protected.
6. In the circumstances of this case, this Court, therefore is of the view that nothing wrong was on the part of petitioners that their suit could be dismissed for default, but fora below definitely committed material irregularity, patent illegality to decline re-admission of the suit, thus impugned concurrent orders being coram non judice/ultra vires, besides suffering from jurisdictional defect neither can be protected nor perpetuated. Consequently, this petition being forceful as well as having substance/merit is allowed, orders impugned herein are set aside and application for restoration of main suit succeeds resulting in its re-admission. The parties are directed to appear before learned District Judge, Faisalabad on 13.10.2022 for entrustment of suit file to Court of competent jurisdiction for further proceedings.