This revision is directed against the order of the Additional District Judge dismissing the appeal of the petitioner against the order dated 17th February, 1980 of the Civil Judge, whereby the latter had dismissed the application for restoration of the suit, which had been dismissed in default On 24th July, 1978,
2. The facts of the case are that in respect of sale through a decree of Court dated 2nd February, 1973 of 95 kanals and 15 marlas of land situate in village Kotli Channu, Tehsil and District Sialkot, by one Smaloo son of Abdul Ghani, predecessor-in-interest of respondents 1 to 8 two suits for pre- emption were filed ; one by the petitioners Zahur Ahmad etc. And the other by Abdur Razzaq. The two suits were virtually consolidated by the learned Civil Judge by making an order under section 28 of the Punjab Preemption Act for concurrent hearing of the two suits after making rival pre- emptors parties in each of the two suits. In the other suit filed by Abdul Razzaq, he was asked to pay more court-fee. He filed a revision before the District Judge. Record was requisitioned as a result of which files of both the cases went to the Court of the District Judge, Sialkot. The case was remanded by the District Judge. The two files were received by the trial Court from the appellate Court on 18th June, 1978. The trial Court thereupon issued notice Pairvi to the parties and their counsel for 24th July 1978. In the suit filed by the petitioners Zahur Ahmad etc. o the notice issued to their learned counsel, the said counsel wrote "Kindl inform the plaintiffs", while on the notice Pairvi sent to the petitioners, the report of the process server dated 22nd July, 1978 was that on account of A rain water which had come in Aik Nala, the way of Kotli Channu was in very bad condition and, therefore, a fresh date be given for the service of the petitioners. On 24th July, 1978 neither the petitioners nor their counsel appeared and the Civil Judge by his order of even date, dismissed the petitioners' suit in default of their appearance. The petitioners filed an application for restoration on the ground that they were not served and their counsel had not informed them and their non- appearance was not advertent. The respondents contested the application on the ground that proper service had been affected on the petitioners through their counsel and they did not appear intentionally and no vound for restoration had been made out. Upon the pleadings of the parties, the following two issues were framed :-
(1) Whether there was sufficient cause to restore the suit ?
(2) Relief.
The Civil Judge by his order dated 17th December, 1980, came to the conclusion that the petitioners had been served through their counsel and had failed to make out any sufficient cause for restoration of the suit. He accordingly dismissed their application by his order dated 17th December, 1980. The appeal filed against the said order also met the same fate. Hence this revision.
3. Learned counsel for the petitioners has raised the following points :-
(i) That after the remand of the case, notice Pairvi were issued for 24th July, 1978 to all the parties and that date was for appearance only and for hearing, as on the said date. The question of the future conduct of the case only was to be considered and, therefore, the suit could not have been dismissed in default of appearance of petitioners-plaintiffs on that day.
(ii) That the two suits had virtually been consolidated under section 28 of the Pre-emption Act and, therefore, also the suit of the petitioners could not have been dismissed for their nonappearance.
(iii) That the petitioners had not been served personally and on facts and circumstances of the case, the service of their counsel (who could not communicate with the petitioners on account of water having come in Aik Nala, which disrupted means of communication to the petitioners' village) could not be considered to be service of the petitioners.
4. 1 have considered these grounds and have also heard the learned counsel for the respondents. I need not decide points 2 and 3 as in my opinion, this petition can succeed on point No, 1 alone.
5. On remand of the case from the Court of the District Judge, notices Pairvi had been sent i. e.
Notices for the appearance of the parties. It is a settled principle of law that the date for the appearance of the parties, is not a date of hearing as on that date only an order of an administrative nature is to be made for the future conduct and prosecution of the case and no investigation of any matter germane to the suit is to be made on that day. Therefore, the order of trial Court dismissing petitioner's suit for nonappearance of petitioners-plaintiffs was void ab initio, without jurisdiction and a nullity in the eye of law. I am fortified in this view of mine by host of authorities. In case of Mst. Qamar Sultana alias Qamarun-Nisa v. Abdul Hussain and another (1), it was laid down that when after the receipt of case on transfer from Court of another Civil Judge, notices are issued for appearance to the parties so that on the next date the steps in regard to the future conduct of the suit be determined the date of the appearance of the parties is not a date of hearing, and the Civil Judge hus no jurisdiction to dismiss the suit in default of appearance of plaintiffs. In case of Allah Ditto v. Aziz Din (2) it was held that when after receipt of record from District Judge after dismissal of appeal in regard to Zar-e-Panjam, suit was dismissed for non- appearance of plaintiffs on a date which was not one for hearing of the suit but for making an order for future progress of case, order of trial Court dismissing the suit was void ab initio, without jurisdiction and a nullity in the eye of law and in revision, the said order was set aside, suit was restored and was sent back to trial court for decision in accordance with law.
6. In my opinion, therefore, the order of the Civil Judge dismissing the suit in default of appearance of petitioners-plaintiffs was without jurisdiction and a nullity in the eye of law and the Civil Judge as well as the Additional District Judge had acted illegally in exercise of their jurisdiction in not treating (in their impugned judgments) the said order of dismissal of suit in default as a nullity in the eye of law and in not restoring the suit to its original number.
7. For the foregoing reason, I accept this revision and reverse the impugned orders of Courts below and set aside the order of dismissal of the suit in default and restore the said suit to its original number and remand the case to the Civil Judge for decision in accordance with law. There shall, however, be no order as to costs. {{FOOT NOTE}}
(1) PLD 1982 Kar. 355 (2) PLD 1981 Lah. 508 {{FOOT NOTE}}