' This Revision Application has been preferred against the order, dated 29th March, 1975, whereby the application filed under section 151 C. P. C. On behalf of the applicant for restoration of the F. C.
Suit No, 16/34 of 1972, was dismissed by the learned District Judge, Mirpurkhas.
' The relevant facts for the purposes of disposal of this petition are that the abovementioned suit, filed by the applicant (hereinafter referred to as the plaintiff), was pending in the Court of Civil Judge First Class at Mirpurkhas. On 25th September, 1971 in the presence of the Advocates for the parties issues were framed and the case was adjourned to 19th October, 1971 for final hearing. The said Court thereafter fell vacant due to the promotion of the Presiding Officer and on 19th October, 1971 and subsequent dates, i. e. 4th November, 1971, 2nd December, 1971, 3rd January, 1972, 20th January, 1972, 12th February, 1972, 14th March, 1972, 4th April, 1972, 15th April, 1972, 11th May, 1972, 6th July, 1972, 22nd July, 1972, 12th August, 1972, 5th September, 1972, 27th September, 1972 and 31st October, 1972, the suit was adjourned for the reason that the said Court was lying vacant. The Court diary of the last mentioned date (i. e. 31st October, 1972) reads as follows :- "No Judge yet taken over charge, Put off to 30th November, 1972 for same purpose."
' The suit was then adjourned to 30th November, 1972 for hearing in the same Court, i. e. The Court of Civil Judge.
2. On 30th November, 1972, the learned District Judge at Mirpurkhas, however, withdrew the abovementioned suit suo motu to his own file without any prior notice to the parties. The plaintiff's Advocate, who happened to be present in the Court of the District Judge, but having no notice of the transfer of the suit, reported no instructions when the suit was called out in the said Court. As the plaintiff, who also had no notice of the transfer of the suit from the Court of the Civil Judge to the Court of District Judge, was called absent, the suit was dismissed for default. On 17th January, 1974, on behalf of the plaintiff an application under section 151 of C. P. C. Was filed for restoration of the suit mainly on the ground that the Court of the Civil Judge was lying vacant as the Presiding Officer had been transferred on promotion and that on 30th November, 1972, when said Court was still lying vacant, the suit was withdrawn by the learned District Judge to his own Court without prior notice to the plaintiff or his Advocate. It was also explained in the application that as the Civil Court, where the suit was pending was lying closed for the above reason, the plaintiff did not contact his Advocate and that his absence on 30th November, 1972 was neither deliberate nor intentional. It was also stated that the plaintiff is living in Muffasil, far away from the seat of the Court. The application was supported by the affidavit of Mr. Muhammad Sharif, Advocate, who was appearing for the plaintiff in the suit.
3. The learned District Judge after hearing the Advocates for the parties, dismissed the application with the observation that though the suit was pending in the Court of Civil Judge, it was withdrawn from the said Court and transferred to his own Court on 30th November, 1972, for which date it was already fixed. The learned District Judge observed that though it was correct that there was no Presiding Officer in the civil Court on 30th November, 1972, when the suit was transferred to his own Court but the parties were expected to attend the next date of hearing as the suit would have proceeded if the Presiding Judge had been there. It was accordingly observed that it could not be urged that the matter was not set down for final hearing and that in view of the statement of the advocate for the plaintiff reporting no instruction and remaining absent the dismissal of the suit was under the provisions of Order IX, C.P.C. And thus the application for restoration of the suit having been filed beyond 30 days, was barred by time.
4. Against the above order of dismissal of the application for restoration of the suit, passed by the learned District Judge, this present petition has been filed invoking the revisional jurisdiction of this Court.
5. I have heard Mr. Mirza Rasheed, advocate for the petitioner and gone through the record of the trial Court. I have already mentioned above the various dates fixed in the suit when for the suit when for the reason that the civil Court was lying vacant, the suit was adjourned from time to time.
Even on 30th November, 1972, the Court of the Civil Judge was still lying vacant when the suit was withdrawn suo Motu, by the learned District Judge without prior notice to the plaintiff or his advocate, to his own Court. It would be reasonable to infer in the circumstances, in view of the several adjournments which earlier had already taken place as there was no Presiding Officer in the civil Court, that on 30th November, 1972, when the said Court was still lying vacant, the presence of the plaintiff would not be necessary. It is an admitted fact on the record that no prior notice of the transfer of the suit from the Court of the Civil Judge to the Court of the learned District Judge was given either to the plaintiff or his Advocate. The plaintiff and his advocate, therefore were not required to be present In the court of the learned District Judge.
6. Here I may refer with advantage to the case of Krishan Lal Malhotra v. Madanlal and others (1) wherein it was held that when a case is transferred by administrative order from one Court to another, even where ex parte proceedings are pending against the defendant, the latter is entitled to notice after transfer inasmuch as he is still a party to the litigation. In the said case it was further observed that when such notices are not given, proceedings taken against the defendant after transfer would be set aside. This case was cited by the Honourable Supreme Court with approval in the case of Rehman Weaving Factory v. I. D. P. B. (2).
In the circumstances of the present case and in view of the principle) laid down in the case of Kirshan Lai Malhotra v. Madanial and others I have no hesitation in holding that the learned District Judge B ought not to have proceeded with the suit after transfer of the same to his own Court on 30th November, 1972 in the absence of any prior notice to the plaintiff or his Advocate.
7. As regards the question of maintainability of the application filed by the plaintiff for restoration of the for default, on the ground that the same was barred by time, an answer would be found to it also, in the case of Rehman Weaving Factory v. I. D. B. P. It would be observed that the suit, out of which this Revision Application has arisen, was dismissed for default by the transferee Court in the circumstances mentioned above on a date of which no prior notice had been given to the plaintiff or his Advocate and as such the plaintiff could not be made to suffer on account of mistake and omission on the part of the Court. Accordingly the suit was liable to be restored in exercise of the inherent powers of the Court. The period prescribed under Article 163 of the Limitation Act in the circumstances would not be applicable.
' In the case of Rehman Weaving Factory v. I. D. B. P. The Honourable Supreme Court noted the earlier decision given in the case of Ch. Meraj Din v. West Pakistan Province (3) wherein it was held that the plea of bar of limitation would not be allowed to operate when a patently illegal order based on the act of the Court was sought to be reversed.
(1) PLD 1950 Lah. 82 (1) PLD 1981 SC 21 at p. 32
(3) 19.78 SCMR 96 ' Here I may also refer to the case of Muhammad Swaleh v. United Grain and Fodder Agencies (I). In that case while considering the plea of bar of limitation to an application made for setting aside ex parte decree passed on a date not fixed for hearing and of which date no notice had been given to the defendant, while delivering the opinion of the Court Mr. Kaikaus J, observed : "It should be remembered that if an order be a nullity then every Court before whom it is brought is not only entitled, but bound to ignore it. If it be held that the taking up of a case not on the date fixed, but on any other day, renders the proceedings totally void, the result would be that even the Court of a 3rd Class Civil Judge could bold that the High Court or the Supreme Court in taking up a case on a particular day without proper notice acted without jurisdiction and the judgment delivered was a nullity."
' It was further held :- "It is not necessary however to decide whether the order of the 22nd April, 1960 (directing of ex parte proceedings) and the ex parte decree of the 27th April, 1960, are wholly void for there is no doubt as to their being not in accordance with law and this is a sufficient ground for their being set aside." *(The words underlined are by me).
8. As to the powers of the High Court to interfere in exercise of revisional jurisdiction with order which was found to be a nulilty, on an application which was resisted on the plea of its being barred by time, the Honourable Supreme Court observed :- "The learned Single Judge had power when exercising his jurisdiction under section 115, C. P. C. To set aside the order directing ex parte proceedings and the ex parte decree passed on that order, for they were the result of illegal or materially irregular exercise of jurisdiction. Even if it were found that the order of the trial Court recalling the ex parte decree could not be sustained because the application for setting aside the decree lay only under Order IX, rule 13, C. P. C. And was time-barred the learned Judge could and under the circumstances should have set aside the illegal order directing ex parte proceedings."
' Having held as above the Honourable Supreme Court further observed that once the High Court is seized of the case in the exercise of its revisional jurisdiction it can in accordance with section 115, C.
P. C. "make such order in the case as it thinks fit."
The principles laid down as above, are fully applicable to the facts of the case under consideration.
The plea of bar of limitation, therefore, C is not available and accordingly the order of dismissal of the suit being patently illegal, is hereby set aside.
9. The upshot of the above discussion is that this petition is allowed and while setting aside the impugned order, dated 30th November, 1972 and 29th March, 1975, the suit is remanded to the Court of the learned District Judge with the direction that the same shall be [Here in italics]
(1) PLD 1964 SC 97 ' disposed of on merits after notice to the parties. It would be open to the learned District Judge either to try the suit himself or transfer it to any other Court of competent jurisdiction.
' As the respondents are absent, the parties are left to bear their own costs.