1. MUHAMMAD YOUSUF SARAF, J.---On 23rd July 1970 when defendants made their first appearance, the Court passed the following order :--- "Plaintiff and counsel for defendant No. 1 are present. Defendant No. 2 is also present. Copy has been given. To come up for written statements on 3-8-1970."
2. On the date so fixed the written statements were not filed but the plaintiff being absent, the Court passed the following order:- "The case has been called several times. Only the agent of the counsel for the vendee-defendant is present. Nobody is present on behalf of the plaintiff. The suit is dismissed for default. Order announced."
3. On the 5th of October the plaintiff moved an application for restoration which was dismissed on the same day. He has now come in revision against the order of dismissal for default. The case is covered by a D. B, ruling of this Court but as it was contended that it needed reconsideration, it was referred to the Full Bench for decision.
4. Order XVII, rule 2 is reproduced below: "Where on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit,"
5. Order IX, rule 8 is reproduced below:- "Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing the Court shall make an order that the suit be dismissed unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder."
6. The word 'hearing' has not been defined anywhere in the Code. The Wharton's Law Lexicon has defined it as 'investiga--tion of a controversy'. The Oxford Dictionary defines it as 'to listen judicially in a Court of law'. Webster's New Interna--tional Dictionary defines it as 'in equity practice, a trial; a listening to arguments or proofs and arguments in interlocutory proceedings'.
7. The term has come up for determination before various High Courts. A perusal of the rulings shows that xo precise definition has either been or attempted to be, laid down. That was quite natural. The consensus of authorities however is that a date fixed for the purpose of determining some interlocu--tory matter for the future conduct of the case cannot be termed as a date of hearing. In PLD 1949 Lah. 432 Cornelius, J. Held that where no investigation of any matter germane to the suit fell to be performed by the trial Court and the only order which it could possibly make was an order of administrative nature, the date so fixed could not be termed as a elate of hearing, Perhaps the most exhaustive definition has been attempted in 57 I C 748 by the Patna High Court where it was held that the expression `hearing of the suit' meant: "A hearing at which the Judge would be either taking evidence or hearing arguments or would have to consider questions relating to the determination of the suit which would enable him finally to come to an adjudication upon it."
8. Following these definitions the following were held not to have been the dares of hearings within the meaning of Order IX, rule 8 read with Order XVII, rule 2:
(1) When defendant has not as yet been summoned. (AIR 1943 Pesh. 51).
(2) When the date was fixes: for the receipt of a file. (PLD 1964 B J 8 and PLD 1949 Lah. 432.
(3) When on the date fixed the report of a Commissioner was due. (AIR. 1936 Lah, 280).
(4) When on the date fixed the report of a Commissioner is due but has not been received. (AIR 1934 Lah. 56 and I C 568 (Cal.)).
(5) When rue case is pending reference to arbitration and the arbitrator has applied for extension, (8 f C 2241.
(6) When the date in question fixed for filing a list of witnesses but at the same time another date already fixed for evidence. (AIR 1938 Rang. 360).
(7) When in accordance with the arbitration agreement after the receipt of conflicting reports from arbitrators the case has been referred to an umpire. (AIR 1937 Pesh. 49 and AIR 1923 Pat. 115).
(8) When the date was fixed for considering an application moved by defendant for amendment of issues. (AIR 1921 Pat. 96).
(9) When the date fixed is for appointment of guardian ad litem. (AIR 1924 Pat. 714).
(10) Date fixed in the suit for the purpose of awaiting the result of another suit in another Court which had been decided by that tine though stn application for correction of decree was also pending. (AIR 1946 All. 506).
(11) Date fixed for parties to file objections against the Commissioner's report. (AIR 1936 Lah. 759).
9. A perusal of these authorities would show that the word `hearing' has received a restricted meaning perhaps out of the natural anxiety of Courts to ensure that cases are decided on merits.
10. The Code as stated earlier has neither defined the term nor does it at the same time differentiate between a date when, say, evidence is to be recorded or arguments are to be heard or issues are to be framed as against those for which, say, the defendants are summoned or the case is otherwise adjourned. In the Code itself every adjourned date has been termed as a date of hearing. It may be emphasised that the Court has not to hear the plaintiff or the defendant but it has to hear the case. Thus in a sense the coming up of the case before the Court on and adjourned date of hearing cannot be termed any--thing but its hearing. It was contended that to interpret the word 'hearing' in such a way may lead to harsh results but it appears that it is not so because the plaintiff whose suit is dis--missed for default is always at liberty to show that his absence was due to sufficient causes and Courts have generally been liberal fn enlarging the scope of such causes.
11. Anyway, the case with which we are seized at the time is not covered by any of the authorities cited above or brought to our notice; therefore, the question that remains to be determined is as to whether a date fixed for the filing of written statements is or is not a date of hearing within the meaning of the relevant provisions of this Code. The only ruling cited before us and, in fact, the only one which we were ourselves able to trace and which is directly in point is PLD 1966 Azad J & K 10.
12. In this case the written statement had to be presented on 27-6-64.
13. It was not filed but the suit was dismissed because the plaintiff was absent. The Division Bench dismissing the appeal, held: "Hearing is not only when evidence has to be recorded by the Court but also when the Court applies its mind to the relevant claims of the parties, 27-6-64 was the date fixed for filing of the written statement; of the defendants. When written statements are filed the Court records the statements of the parties and strikes issues. The recording of the state--ments of the parties or the striking of the issues amounts to hearing because the Court at this stage applies its mind to the relevant claims of the parties. Disagreeing with the learned counsel for the appellant we hold that the provisions of Order IX, rule 8, C. P. C. Apply to the facts of the present case."
14. It is true that the plaintiff's presence was immaterial so far as the presentation of the written statement was concerned be but all the same it cannot be said that it was not a date of hearing. A perusal of the relevant provision of the Civil Procedure Code would show that it is no requirement of law that on presentation of the written statement the Court must necessarily adjourn the case for examination of the parties if necessary and the settlement, of issues. On the other hand the Code has expressly empowered the Court to proceed with the recording of such statements and the settlement of necessary issues on the same date.
15. The provisions are reproduced below:- "Order X, rule 2.---At the first hearing of the suits or at any subsequent hearing, any party appearing in person or present in Court, or any person able to answer any material questions relating to the suit by whom such party or his pleader is accompanied may be examined orally by the Court; and the Court may, if ft thinks fit, put in the course of such examination questions suggested by either party.".
16. Order XIV, rule 1, sub-rule (5) is reproduced below:- "(5) At tire first hearing of the suit the Court shall, after read--ing the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend."
17. It was contended that as g written statements were not presented the Court could not proceed with the examination of the parties and settlement of issues and as such the plaintiff should not suffer for his absence. In our view it should make no difference because if a case is fixed expressly for written state--ments it amounts to a date of hearing not only because the Court hears the defendants for the first time as to what he has to say against the claim brought against him by his opposite party, but also because the Court is free to proceed immediately with their examinations and the settlement of issues. It is impor--tant to note that Order IX, rule 8 as well as Order XVII, rule 2 has nothing to do with what proceedings actually take place on the date of dismissal but for what proceedings it had been fixed for that date. If a case is fixed for something which could be termed as hearing then the plaintiff---s absence is sufficient for its dismissal but on the other hand if it is not fixed for such hearing, the plaintiff may well claim that he cannot be penalised simply because the Court could have proceeded to hear it within the meaning of the word.
18. The learned counsel for the petitioner has referred us to PLD 1971 Lah, 746 and PLD 1970 Lah. 412. In the first ruling the case was fixed for the 24th of July 1963 when the defendant had to file his written statement. This was not done and the case was adjourned to the 30th of September 1963 for the same purpose but was actually taken up on the 26th of July and the plaintiff being absent the suit was dismissed for default. It was found by the trial Court and this finding was confirmed by the High Court that the case had in fact been adjourned to the 30th of September and it was therefore, rightly held that it could not be taken up on the 26th of July. In the second case all facts are not clear from the judgment but it seems that the plaintiff was required to file a replica and on being absent the suit was dismissed. The learned trial Judge came to the conclusion that the plaintiff had a bona fide mistake about the date of hearing. It is thus clear that this ruling also is of no assistance to the petitioner's case because the dismissal was set aside not because the presentation of the replication was not treated as hearing but because the plaintiff was believed in, his contention that the date of hearing was the 27th of February or that he had a bone fide mistake about it.
19. Under these circumstances we are of the opinion that the date of dismissal of the suit in question was the date of heating within the meaning of Order XVII, rule 2 read with Order IX, rule 8 of the C. P.
20. C. The contention of the learned counsel for the petitioner is, therefore, rejected.
21. The next contention of the learned counsel for the petitioner must however prevail. The plaintiff was un-represented in the trial Court. In the application for restoration moved on 5th October he claimed that on the 23rd of July the next date given to him by the clerk of the Court was the 3rd of October whereas the case was actually taken up on the 3rd of August. It was moved on the 5th of October. He also claimed that he attended the Court on the 3rd of October and when he found that his case was not called for hearing he enquired from the clerk concerned who told him that the suit had been dismissed on the 3rd of August. The 4th of October was Sunday. The application for restoration containing these allegations is accompanied by a detailed affidavit on all relevant points.
22. The learned Sub-Judge called for a report from the office and on the same day dismissed it on the ground that the petitioner in order to achieve his object, was trying to shift blame to others.
23. Obviously, the learned Sub-.Fudge has acted in hot haste by dismissing the application without affording the petitioner an opportunity of proving his allegations because if it is proved that the clerk had in fact given him the 3rd October as the next date of hearing, then dismissal of the suit on the 3rd of August would be ab initio void as held in PLD 1971 Lah. 746. The learned Sub-Judge should not have ignored the affidavit and summarily dismissed the application. Incidentally, a suspicious cir--cumstance is that the date fixed and the date alleged to have been given to the petitioner has an interval of sixty-one days whereas the limitation for applications for restoration of suits dismissed for default is 30 days. A perusal of the file also shows that it was the clerk who has written the adjournment order on the 23rd of July. Both are no doubt, by themselves. Neutral circumstances which may or may not reinforce his contention but apparently the learned Sub- Judge not having directed his attention towards the affidavit and the surrounding circumstances was led to pass an arbitrary order.
24. It goes without emphasis that the ability of the Courts to administer justice is the foundation of the modern State. It is the duty of a Judge to ensure not only that he dispenses justice but what is equally of vital importance, that justice also seems to have been done. The characteristic of a good judgment is that it must be self-evident and self-explanatory: in other words, it must contain the reasons that justify the conclusions arrived at and these reasons should be such that a disinterested reader can find convincing or at least reasonable. The reasoning should not be left to the imagination of the reader for such an order is apt to be termed as arbitrary.
25. In cases as the present one where a grave allegation which if proved, would amount to gross abuse of public office, has been brought against a clerk of the Sub-Judge's establish--ment, it was all the more imperative for the learned Sub-Judge to have exercised his powers of dismissal with greater caution and after fuller consideration because a Judge should be able to inspire confidence. It is not a world of angels. Many a litigants resort to every possible device to achieve success. To them the end justifies the means and when successful, they not only relish the means, no mutter how immoral or ingenious, but also share their highly coloured version with the general public. Therefore, when an abuse is attributed to an officer of the Court, the Presiding Officer would in our view be failing in his duty if he does not energetically and ruthlessly unearth the truth so that the shadow thus cast on the ability of the administration of justice to uphold the scales of justice evenly, is convincingly dissolved. Should as a result of an impartial enquiry the allegation turn out to be true, the officer at fault ought to suffer the consequences but should the allegation be proved false, the petitioner should be proceeded against in accordance with law.
26. Under these circumstances the learned Sub-Judge had no prima facie evidence before him for summary dismissal of the application. We, therefore, accept this petition and remand the case back to the learned Sub-Judge with the direction to proceed afresh with the disposal of the application for restoration of the suit in the light of this decision.