' ABDUL KARIM KUNDI, J.-Writ petition No.410/84 arises in the background of facts as one Hassan Gul, a defendant had died pending the suit. Plaintiff-petitioner was required to file list of his legal representatives and for the failure on his part in the compliance he was last directed on 30-7-1977 to file list of the legal representaive of the deceased-defendant without fail on 14-9-1977 which date happened to be a holiday due to "Eid-ul-Fitr and on the day the reader of the Court recorded the attendance of the parties and adjourned the case to 2-10-1977. On the said date counsel for defendant No.l. was present while the plaintiff-petitioner and his counsel did not turn up in response to the calls and the Court proceeded to dismiss the suit in default under Order IX, rule 8, C.P.C. The plaintiff, petitioner filed an application for restoration of his suit on 26-11-1977 stating that he was a heart patient and was admitted to clinical treatment on 1-10-1977 wherefrom was only joined on 20-11-1977 when soon thereafter he filed the restoration application. He pleaded that his non-attendance on 2-10-1977 was not deliberate and intentional. The trial Court restored his suit on payment of costs in the sum of Rs.40 by its order, dated 7-5-1979 against which defendant- respondent went in revision before the Additional District Judge, Kohat who upset the order of restoration for the alleged failure on the part of the plaintiff-petitioner to account for non-filing of the application for restoration for the suit for some six days after his recovery from illness. In the absence of other adequate remedy plaintff-petitiner sought a redress by the writ petition under Article 9 of the Provisional Constitution Order, 1981 read with Article 203 of the Constitution of the Islamic Republic of Pakistan, 1973 and the Laws (Continuance in Force) Order, 1977 added with section 151, C. P.C. on the grounds that on the date of the dismissal in default of the suit, it was not called on for hearing by the Court as on a previous date, the suit had been adjourned to the said date under the note of the reader of the Court who had also not posted the case to the said date vith any specifc directions and that even if the specific directions of the preceding date of hearing to file list of the legal representatives of one of the deceased-defendants was to be assumed as the specific purpose of adjournment, the same would still not amount in any case to a date of hearing to entail the dismissal of the suit in default. He contended that the learned revisional Court i.e. the Court of Additional District Judge had thus erred in considering it a date of hearing and passing the impugned order by accepting the revision-petition and upsetting the order of restoration of the trial Court, all which were to beg for the exercise of constitutional supervisory and inherent powers of the High Court to set at naught the impugned order of the learned Additional Duistrict Judge dated 24-6-1979 and corresponding confirmation of the order of restoration of Civil Judge, Kohat dated 7-5-1979.
2. After hearing the learned counsel the parties and ongoing through the record, we have found it to be a case one primarily covered by the Order XVII, rule 4, C.P.C. as the proceedings were set down for 14-9-1977 which happened to be a holiday due to "Eid-ul-Fitr" and the parties were to appear in the Court on the day next following that day when the Court was either to proceed with the case on such date or fix some other date thereafter. In the instant case reader attended the Court on 14-9-1977 and he recorded the attendance of the parties and adjourned the case to 2-10- 1977 under his note. Order XVII, rule 5, C.P.C. provides that when on any date the Presiding Officer of the Court is absent by reasons of illness or any other cause, the ministerial officer of the Court authorised in that behalf shall hand over to the parties slips of papers duly signed by him specifying the next date fixed for the proceedings. Thus, rule 5 comtemplates a working day when the Presiding Officer is absent for some reason and a duly authorised ministerial officer in this behalf has to post the case t some other date for specific purpose and also to hand over to the parties slips of papers under his signatures specifying the date fixed for the proceedings. Hence even if the application of rule 5 of Order XVII, C.P.C. is assumingly attracted to the proceedings, still the failure in the compliance of the mandatory provisions of the rule i.e. the authorisation of the reader of the Court in that behalf and the delivery of duly signed slips of papers to the parties specifying the next date fixed for the proceedings would render the proceedings of the dismissal in default of the suit by the Court on such a date simply invalid. In support of the viewpoint reference may be made to PLD 1976 Quetta 42.
3. Besides above, plaintiff-petitioner has been required to file list of L.Rs. of the deceased- respondent since placed ex parte. After the Law Reforms Ordinance, 1972 it has been provided under sub-rule (4) of rule 4 of Order XXII, C.P.C. that it shall not be necessary to substitute the legal representatives of a deceased-defendant who has failed to appear and contest the suit at the hearing and placed ex parte and that the judgment may be pronounced against him notwith - standing his death. In fact after the Law Reforms Ordinance, 1972 the defendant is under obligation to file alongwith his written statement, the list of his L.Rs. and to nominate a person to intimate the Court the fact of the death of the defendant and to furnish the Court with necessary particulars and addresses of the L.Rs. of the defendant and also to make an application for their substitution as envisaged under rule 13 of Order VIII, C. P. C. Again under sub-rule (1) of rule 4 of Order XXII, the Court shall cause the L.Rs. of the deceased-defendant to be made a party on receipt of an intimation of the death of such defendant from the person nominated by him under rule 13, Order VIII for the very purpose. Under sub-rule (3) it is further provided that if no application has been made or intimation given under sub-rule (1) the Court may proceed with the suit notwithstanding the death of such defendant and the decree shall have the same force and effect as if it had been pronounced before the death took place. It thus comes to that after the Law Reforms Ordinance, 1972 the defendants have been placed under obligation to file alongwith their written statements, the list of the L.Rs. and to nominate persons to supply the particulars and also to make an application for the L.Rs. to be made a party and that the non-compliance on their part would authorise the Court to proceed with the suit notwithstanding the death of such defendant. In any case, the plaintiff's suit shall not abate for a failure on his part to file a list of the L.Rs., of the deceased-defendant. Non-compliance of a direction to the effect on the part of the plaintiff- petitioner was not, therefore, to result in abatement and dismissal of his suit, Moreover, the job of filing of list of L.Rs. of the deceased-defendant is not an act of hearing of the suit and at the most it shall be an interlocutary matter and if a suit had been dismissed on such a date for default of appearance under Order, 9 rule 8, C.P.C. the same will be an act, without jurisdiction and lawful authority on the part of the Court and to be of no legal effect liable to be set aside. In PLD 1970 Lah.
412 a case fixed for replication by the plaintiff was dismissed in default which was declared by the Court as the case not fixed for hearing and the order of dismissal in default was declared without jurisdiction and was set aside under section 151, C. P. C. in exercise of the inherent powers of the High Court.
4. As regards the observations of the learned Additional District Judge, Kohat that the plaintiff- petitioner could not account for six days after his recovery from illness in non-filing of the restoration application, he perhaps meant reference to and the application of Article 163 of the Limitation Act to the proceedings whereunder a period of 30 days has been prescribed to set aside the order of dismissal in default from the date of dismissal although we have found that the application of Order IX, rule 8, C.P.C. was not being attracted to the facts of the case in view of the discussion of the provisions of Order XVII, rules 4 and 5, Order VIII, rule 13 and Order XXII, rule 4, C.P.C. and in the circumstances the provisions of residuary Article 181 of the Limitation Act prescribing a period of three years limitation shall apply to the facts of the case.
5. In view of the aforegoing discussion we shall accept the writ petition, declare the impugned order of the learned Additional District Judge, Kohat dated 24-6-1979 without lawful authority and to be of no legal effect and restore the order of the Civil Judge, Kohat dated 7-5-79, leaving the parties to bear their own costs. The files shall be remitted to the trial Court for decision on merits.