' MUHAMMAD ISHAQUE KHAN, J.--Through this constitutional petition Muhammad Khan son of Rafiuddin resident of Chuntra Banda Jalbai Tehsil and District Mardan has invoked the extraordinary jurisdiction of this Court with a prayer to declare the order, dated 14-7-1981 of the Additional District and Sessions Judge, Mardan (respondent No, 1) as illegal and of no legal effect.
2. Facts leading to instant constitutional petition may be summarised as thus ; on 7-12-1978 petitioner Muhammad Khan instituted a suit in the Court of Civil Judge, Swabi, for possession through pre-emption of 11 Kanals and 18 Marlas of land out of Khasra No, 537, Khata No, 279/ 262, situated in village Jalbai, 1 ehsil Swabi (total area measuring 114 Kanals 1 Marla) on payment of Rs, 300 claiming superior right of pre-emption, against the defendants vendees (respondents 2 and 3 herein) on the basis of co-shareship etc. On 21-12-1978 when the suit was fixed for framing of the issues, since neither the petitioner nor was his counsel in attendance, the Civil Judge Swabi dismissed the suit for default. On the same date petitioner Muhammad Khan submitted an application for the restoration of the suit on the ground that he was in jail on a charge of murder under section 302, P. P. C. And after his release on bail when he attended the Court he came to know that the suit had been dismissed for default. He prayed that since the default was not intentional, therefore, the suit may be restored. This application too was dismissed for non- prosecution due to the absence of the petitioner on 28-6-1979. Muhammad Khan petitioner submitted another application on 11-7-1979 praying for the restoration of the suit and his earlier application on the ground tha t on 22-5-1979 he was in jail and his counsel also did not attend the Court, therefore, the petition was dismissed for default. It was prayed that since the default was the result of unavoidable circumstances, therefore, the suit may be restored. The petition for restoration also met the same fate because on 11-10-1979 when it stood fixed before Court neither the petitioner nor was his counsel present. Petitioner Muhammad Khan submitted yet another application for restoration of the suit on 11-10-1979 which was accepted by order, dated 27-5-1980 and suit of the plaintiff/ petitioner was restored on payment of costs of Rs,
30. Defendants/Vendees (respondents 2 and 3) feeling aggrieved by the order of restoration went in revision in the Court of Additional District Judge, Mardan at Swabi (respondent No, 1) who by his order dated 21-7-1980 accepted the revision and remanded the case back to the learned Civil Judge with a direction that the case may be decided strictly in accordance with law after giving the parties chance to lead evidence for and against the restoration application. After the remand the learned Civil Judge recorded the evidence of the parties and by his order, dated 5-11-1980 came to the conclusion that the application for restoration of the suit submitted by the plaintiff/petitioner were all within time and, therefore, were accepted and the main suit was fixed for written statement on 24-11-1980. The defendants/vendees against went in revision to the Court of Additional District Judge, Mardan against the said order of the Civil Judge and by his order dated 14-7-1981, the learned Additional District Judge, Mardan held that the restoration applications having been filed after the statutory period of limitation assigning no good reasons therein were erroneously accepted by the Civil Judge. Accordingly setting aside the order, dated 5-11-1980 of the Civil Judge, Swabi he dismissed the suit of the plaintiff/petitioner.
3. We have heard the learned counsel for both the parties and given our anxious consideration to the point involved in this petition.
4. It is not disputed that the suit of the plaintiff was dismissed for default on 21-12-1978 and application for its restoration was submitted in the Court on the same date. It was specifically stated in the application for restoration that the petitioner was behind the bars on a charge under section 302, P. P. C. And after release on bail on the same date when he came to know of the fate of his suit he submitted the application referred to above. The process of the Court, as it appears from the report of the concerned official on the back of the application, was also completed on the very date. It has been in clear terms provided in the High Court Rules and Orders Volume, I Chapter I(J), rule (6) that "some Judicial Officers are inclined to dismiss cases in default hastily in order to show an increased outturn. This tendency must be strongly deprecated. No case should be dismissed without giving a party reasonable opportunity to appear as indicated in rule 5, relevant part whereof reads that "It is impossible to expect a man to remain in constant attendance for the whole of the time during which the Court is sitting. A convenient method is to lay aside a case when it is found that both the parties are not present, and to call it a second time later on in the day, when all other cases have been called and those in which parties are present have been disposed of, and though it is not desirable to lay down any hard and fast rule as applicable to all cases, the above course should ordinarily be followed". The dismissal of the suit and application for restoration on the Court also on that very date is clearly indicative that in utter disregard of the High Court Rules and Orders on the subject the Civil Judge in a very hasty manner dismissed the suit of the plaintiff. It is of significance to point out that the paramount duty of the Court of law is to do justice between parties and merely on technical grounds they should not hesitate to grant proper relief. It is needless to point out that law requires the adjudication of dispute on merits. In Ram Shaikar v. Ram Narain (1) it was observed that no order of dismissal in default should be passed till end of the day when the Court was rising because there could be no default until the Court rose for the day. It was thus incumbent upon the Civil Judge, c keeping in view the aforesaid rule position, coupled with fact that the ground on which restoration was sought and which precluded the petitioner to attend the Court in the earlier hours being beyond his control, should have restored the suit. However, this petition for restoration was upto 28-6-1979 when again the petitioner absented himself from the Court and this petition for restoration also met the same fate of being dismissed in default. It is of importance to state here that 28-6-1979 was fixed under the note of the Reader of the Court and the date fixed by the Court was 22-5-1979 on which date too the petitioner was absent.
5. Petition for restoration of the application dated 28-6-1979 was presented in the Court of Civil Judge on 11-7-1979 wherein it was specifically agitated by the petitioner that be was behind the bars in Swabi Judicial Lock-up on the date fixed and hence the default on his part and the dismissal of the application. Even on the very date the application for restoration was being moved he was still in the lock-up. This subsequent application was also dismissed for default of the petitioner on 11-10-1979. It is very unfortunate and with regrets pointed out that the learned Civil Judge while dismissing the petition in default did not have the least consideration that 6th of September, 1979 which stood fixed in the case and on which date the case was posted to 11-10-1979 happened to be the gazetted holiday and no notice whatsoever was given to the petitioner or his counsel about the change in the date. Thus, the dismissal of the restoration application on this ground alone was also not called for because apparently it was not the default of the petitioner rather the inefficiency and the incompetency of the Court establishment that the case had been fixed on 6-9-1979 which had been notified as gazetted holiday in the beginning of the year. It is regrettable that in the Courts where people come with a view to get their grievances redressed, on technical grounds rather for the obvious error of the Court itself their cases are dismissed not on merits.
6. Muhammad Khan petitioner on the very date of his dismissal of the restoration application i,e, 11- 10-1979 submitted another application for the restoration of the suit and stated specifically therein that at 9-00 a.m. When he attended the Court he came to know that his application for restoration had been dismissed. This dismissal tantamounts to abuse of process of the Court and it appears that the Court establishment was bent upon dismissing the suit for default by hook or by crook.
After all the Presiding Officer of the Court is expected to be very passionate in Court affairs and he is not supposed to come to the Court to punish the litigants.
7. Under Order IX, rule 9 where a suit is wholly or partly dismissed, under rule 8 the plaintiff is precluded to bring a fresh suit in respect of the same cause of action but he may apply for an order to set the dismissal aside and if he satisfies the Court about sufficient cause for his nonappearance the Court shall make an order setting aside the dismissal upon
(1) AIR 1928 All. 301 ' such terms as to costs or otherwise as it thinks fit. Under Article 163 of the Limitation Act the plaintiff is required to apply for setting aside dismissal of the suit for default within 30 days of such .Order.
From the facts narrated above it is clear that the plaintiff did apply for the restoration of the suit dismissed for default on the very day on which it was so directed to be dismissed as for the application for the restoration of application filed on 11-7-1979 against the order, dated 28-6-1979 it was argued that factually the petitioner had absented himself from appearance in the Court on 22-5-1979 and, therefore, it was not within the specified 'period of 30 days but in such situation Article 163 is not applicable. On the other hand Article 181 of the Limitation Act comes into play. First!
D it was the date on which the order of dismissal was made i,e, 28-6-1979, and in this way the application submitted on 11-7-1979 was quite within time. Even otherwise Article 163 of the Limitation Act does not apply to the applications for the restoration of the application for restoration of the suit as held in Ahmad Ali v. Registrar, Co-operative Societies (1) :- "An application under Order IX, rule 9, C. P. C. Was itself dismissed for default. Another application under Order IX, rule 9, was made for the restoration of the first application under Order IX, rule 9. The trial Court dismissed the second application as not maintainable. In revision before the High Court on the question whether an application under Order IX, rule 9, C. P. C. Lies to restore previous application under Order IX, rule 9 which previous application had itself been dismissed in default.
Held : A second application may be made under the provisions of Order IX itself read with section 141, C. P. C. Judicial consensus is in favour of the view that a second application under Order IX for restoration of a previously dismissed application under the same provision would lie, either under Order IX itself or under section 151, E C. P. C. And absence in the Limitation Act of express provision for period of limitation for such application should dot stand as a be to deprive a party of its remedy which is not expressly prohibited by the Code of Civil Procedure or by any other statute.
Held further, in all such cases Article 181 would be properly applicable, as this article is a residuary article which applies to all applications for which no express provision is made in the Limitation Act."
Accordingly in the subsequent applications for the restoration of the previous applications for restoration of the suit Article 181 of the Limitation Act' would apply which prescribes a period of 5 years for such applications.
8. The learned Additional District Judge in his revisional jurisdiction while accepting the civil revision on one hand admitted to be true, the assertion of the petitioner that on the relevant dates he was behind the bars awaiting his trial but in his view there was nothing to prevent the petitioner from engaging a counsel in his pre-emption suit. It was further opined by the learned Additional District Judge that if he could engage a counsel in the murder case he could have done the same in his pre-emption suit as well. This observation of the learned Additional District Judge exercising revisional jurisdiction was not called for. The learned Additional District Judge failed to illustrate the points if by restoring the suit, the Civil Judge had exercised jurisdiction not vested in him by law, or he failed to exercise jurisdiction so vested in him or that he acted in the exercise of his jurisdiction illegally or with material irregularity. In the revision petition before
(1) PLD 1971 Kar. 182 the learned Additional District Judge his scope was not beyond that, If the plaintiff/petitioner had not engaged a counsel having once faced the bitter experience that the one whom he had engaged had not attended the Court, because when order of dismissal in default of the main suit was directed the petitioner was duly represented by a counsel who however had not attended the Court, it should not be considered a punitive part so as to cost him in the dismissal of his case in default. It is but natural that on a murder charge the petitioner had to engage a counsel for his proper defence but that should not be taken as evidence against the petitioner that he failed to engage a counsel in the restoration application. The learned trial Court, after it was satisfied that the default on the part of the petitioner was not intentional was quite within his statutory jurisdiction to restore the suit and the learned Additional District Judge in his limited scope should not have interfered with the conclusion arrived at by the trial Court.
9. On the view of the matter we take, we would allow this petition and direct that the order, dated 24-7-1981 of the Additional District Judge, Mardan is a nullity and is of no legal effect. Keeping in view the peculiar circumstances of the case we would make no order as to costs.