Nobody has appeared on behalf of the respondents. They are hereby proceeded against ex parte.
2. The suit filed by the respondent No.3 under section 39 of the Specific Relief Act for cancellation of disputed document was dismissed for non---prosecution on 7-2-1974. An application was moved by the respondent No.3 for restoration of the said suit on 4-2-1977. This application was too dismissed for non-prosecution by order dated 21-6-1977. The respondent made an application bearing No.35 of 1978 for restoration of this application which was dismissed on merits after framing issues and recording evidence through order dated 18-10--1979. This order was challenged by respondent No.3 by filing appeal before the learned Addl. District Judge, Faisalabad which was accepted by order dated 2-12--1980. The application of the respondent No.3 moved by him on 4- 2-1977 for restoration of the suit was restored and ordered to be disposed of on merits. The learned trial Court framed the issues and after recording evidence, through impugned order dated 24-3- 1986, accepted the said application and the suit was restored. This order was challenged by the petitioner through revision petition before the learned Additional District Judge which has been dismissed through order dated 9-3-1987.
3. In this constitutional petition, both these above-mentioned orders have been challenged.
4. Learned counsel for the petitioner maintained that the application for restoration of the suit which was dismissed for non-prosecution on 7-2-1974 was to be moved within 30 days from the said date under Article 153 of the Limitation Act prescribing limitation period of 30 days as such it was barred by time on the date when it was moved on 4-2-1977.
5. I have examined the original record of the suit which was summoned in order to ascertain the correct factual position as to whether 7-2-1974 was a date fixed for hearing in the suit. I have examined the record. Prior to 7-2-1974 the date in the suit was 19-1-1974. On this date the file of the suit was received by the learned trial Court through transfer from the previous Court where it was pending. Order dated 19-1-1974 shows that respondent/plaintiff was present whereas the petitioner defendant did not appear. The learned trial Court passed an order for issuance of notice "Parvi" to the present petitioner/ defendant for 7---2-1974. On this date the petitioner appeared whereas the respondent No.3 did not appear and the learned trial Court proceeded to dismiss the suit for non-- prosecution. A plain reading of these two orders dated 19-1-1974 and 7-2-1974 shows that on 7-2- 1974 the suit was not fixed for hearing but just for procuring the attendance of the petitioner/defendant and thereafter it was to be fixed for hearing. The rule is firmly settled that if a suit is dismissed for non-prosecution due to non-appearance of plaintiff on a day when it was not fixed and called on for hearing, the application for restoration of the same shall be governed by Article 181 of the Limitation Act and not Article 163. This view finds support from the judgment reported as Malik Muhammad Nazir v. Mian Abdul Rahim and others PLD 1968 Lah. 792. The learned trial Court's order is in accord with the law as laid down by this Court in the said reported judgment when it held that the application was within limitation having been moved within three years, and that the same was governed by Article 181. The learned trial Court as also the learned lower appellate Court in this view of matter have not committed any illegality in exercise of their jurisdiction.
6. Faced with this difficulty, the learned counsel for the petitioner tried to overcome it by arguing on the strength of reported judgment Lal Din v. Ghulam Muhammad and two others 1986 SCMR 487 that the period of limitation was 30 days under Article 163. The facts of this reported case are substantially different and distinguishable therefore, the rule laid down in this judgment is not applicable to this case. The fact of this reported judgment were that the case was fixed for 17-9- 1967, whereas it was erroneously taken up by the Court on 17-7--1967 and the learned counsel for the plaintiff whose sitting place in the Court premises happens to be near the Court appeared when he heard the call made outside the Court. The learned counsel stated that he had no instructions for prosecution of the suit on the said date. The learned trial Court dismissed the suit for non-prosecution on the said date. An application for restoration of suit was made on 21-10-1967 which ultimately was held to be barred by time. The view taken was that according to the plaintiffs the suit was fixed for 17-9-1967 which was a date of hearing in the suit. It was held that the plaintiff was duty bound to appear in the Court on 17-9-1967 as according to him the case was fixed on the said date and had he appeared he would have come to know that the suit had already been dismissed. It was held that the limitation started-running for making application for restoration of the suit on 17-9-1967. Their Lordships held in this case, that the period of limitation was to start from the date when the suit was fixed for hearing. That being so, the previous rule laid down in PLD 1968 Lah. 792 referred to above that the period of limitation for restoration of suit on a date not fixed for hearing would be governed by Article 181 of the Limitation Act still holds the field and cannot be held to have undergone any change.
7. The impugned orders do not suffer from any illegality so as to render them without jurisdiction and without lawful authority. No case has been made out for interference by this Court under Article 199 of the Constitution The writ petition fails which is hereby dismissed without any order as to costs.
AA./S-517/L revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.