1. ' This second appeal arises out of a pre-emption suit which was dismissed in default and an application pertaining to a collateral matter of this very suit, which (application) was also dismissed (presumably) for want of proof vide order dated 25-1-1981 of the Court of Sub-Judge, Bagh. Against this order an appeal to the Court of Additional District Judge, Rawalakote at Bagh was filed by the plaintiff-respondent which was accepted and the impugned order of the trial Court was set aside vide judgment dated 5-9-1981 of the Additional District Judge.
2. ' The counsel for the parties were heard.
3. ' In this appeal it is contended that no appeal against the impugned order dated 25-1-1981 passed by the Sub-Judge lay under law as the suit was dismissed in default and the application, for want of proof, in respect of bringing legal representatives of a pro forma-defendant, namely Sobbat Ali Khan on record, was also dismissed as the plaintiff and his counsel failed to appear and bring witnesses to give evidence on the date fixed for the evidence of the plaintiff. Sohbat Ali Khan was just a pro forma-defendant and not a necessary party. For want of proof, no legal representative of Sohbat Ali Khan could be allowed to be brought on record by the trial Court. What would be the effect of this order on the suit of pre-emption was to be seen by the trial Court but it failed to do so.
4. The suit was not fixed for hearing on 25-1-1981 when the suit was dismissed in default for not making appearance before the Court. Obviously, the suit could not legally be dismissed by the trial Court under Order XVII, rule 2 read with Order IX and its relevant provisions laid down thereunder as the date on which the suit was dismissed A in default was not a date for hearing of the suit, and the evidence on the application for bringing the legal heirs of the deceased on record was to be collaterally given and so instead of dismissing the suit in default, the Court ought to have decided the case on merits, whatsoever. That was not done.
5. ' That being so, though the appeal before the Additional District Judge may not be competent against the impugned order passed by the Sub-Judge, yet this Court of its own motion in the circumstances above can look into the matter in exercise of its revisional powers. The impugned judgment of the Additional Judge for being without jurisdiction may be annulled and still I feel that in the interest of justice I must interfere with the impugned order of the Sub-Judge and set aside the same as to restore the suit on its original number for its trial and disposal according to law. This appeal is thus stands disposed of in Court of Sub-Judge is set aside. The restoration of the suit is ordered accordingly for its trial and disposal in accordance with law.