1. ' MUHAMMAD AFZAL ZULLAH, J.--This appeal through leave of the Court is directed; against the acceptance by the High Court of respondent's Civil Revision which had arisen out of a suit for cancellation of a deed for the appointment of a Mutawalli and wherein an order for appointment of receiver had been passed. Suit filed by the appellant's side was dismissed by the trial Court for non-prosecution. The plaintiff/appellant's application for setting aside the dismissal for non- prosecution, was dismissed. However, his appeal was allowed by a learned Additional District Judge. The High Court, allowed the respondent's revision and thereby restored the dismissal of the appellant/plaintiff's suit for non-prosecution. Hence this appeal.
2. ' Leave to appeal was granted after noticing the facts, circumstances and the points as follows:-- ' The appellant had filed a suit in the Court of Senior Civil Judge, Quetta, which was dismissed for default of appearance on the part of the appellant by the Court on 28th December, 1986. Although the appellant was represented by counsel, an application for setting aside the dismissal of the suit for default of appearance was submitted by the clerk of the counsel on 29th December, 1986. Upon an objection that the clerk had no authority to submit such an application, another application was submitted by the petitioner himself on 15th March, 1987, supported by his own affidavit and that of his counsel Mr. Tariq Mahmood as well as of another learned counsel Mr. Shakeel Ahmed. This application was contested by the respondent and by order, dated 19th July, 1987, the learned trial Judge dismissed the application.
3. ' Being aggrieved by the aforesaid order, the appellant filed appeal before the learned Additional District Judge, Quetta, which was allowed, in that the order dismissing the suit passed by the trial Judge was set aside and the case was remanded for trial on the ground that the date on which the suit was dismissed, was not fixed for hearing of the suit.
4. ' The respondent challenged the judgment and order passed to the Additional District Judge, dated 16th July, 1987, before the Baluchistan High Court in a civil revision which was accepted by a learned Single Judge vide his judgment, dated 16th May, 1988, holding that the date on which the suit was dismissed was fixed for "hearing", that the application for setting aside the dismissal of the suit was barred by time and no application for condonation of delay was submitted.
5. ' The appellant thus sought leave to appeal from the judgment of the High Court.
6. ' In support of the appeal learned counsel, has submitted that the order dismissing the suit of the appellant on 28th December, 1986, was illegal and passed without jurisdiction as the suit itself was not fixed for 'hearing' as required by Order IX, Rule 8 or Order IX, Rule 3, C.P.C. In this connection learned counsel has referred us to certain facts appearing on the record and the order sheet of the suit. By order, dated 3rd February, 1986, the learned trial Judge in exercise of suo motu powers, to protect the subject-matter of the suit comprising Waqf properties, directed the appointment of a receiver. On the same day the Court directed the parties to suggest the name of the person for appointment of receiver and adjourned the proceedings to 11th February, 1986. The case was adjourned once again from 11th February, 1986 to 23rd February, 1986. On the last mentioned date request was made for time to suggest the name of the receiver and the case was called up on 6th March, 1986, on which date the appellant's counsel suggested a name for appointment as receiver.
7. The case was again adjourned to 10th March, 1986 and was being adjourned from time to time, apparently for the respondent's counsel to suggest the name of the receiver. In this way the case was adjourned from time to time at the request of respondent's counsel. Eventually the case was called up on 8th December, 1986, when review application in respect of the order appointing receiver dated 3rd February, 1986, was dismissed and once again the case was adjourned for suggesting the name of the receiver to 16th December, 1986. On the latter date only the counsel on behalf of the appellant was present and the case was adjourned to 18th December, 1986, for further proceedings. On that date as the person nominated for appointment as receiver had, in the meantime, been appointed as a Civil Judge the Court ordered that one more opportunity be given to the parties to suggest another person's name for appointment as receiver. For this purpose the suit was adjourned to 28th December, 1986 when it was dismissed for nonattendance. In the context of these events learned counsel forcefully contended that the date in question was not fixed for further progress of the suit itself but only for suggesting the name of a person for appointment as receiver, and accordingly the Court had no power to dismiss the suit which was not called on for hearing. In support of this argument reliance has been placed on Mirza Muhammad Iqbal Beg and others v. International Estate Developers Ltd. (1986 M LD 2785) in which when the suit was fixed for arguments on the application for interim stay, it was held that the suit could not be dismissed under Order IX, Rule 8, C.P.C., Similar view was taken in Sheikh Abdul Rehman v. Shib Lal Sahu and others AIR 1922 Pat. 252, in which the suit was fixed for appointment of guardian and was dismissed for non-appearance of the plaintiff, which was held to be without jurisdiction.
8. ' So far as the question of limitation is concerned learned counsel submitted that in the facts of the present case the application submitted by the appellant for restoration of the suit was governed by residuary Article 181 of the Limitation Act which prescribes the period of limitation of three years from the accrual of right to apply. In this behalf reliance has been placed on Messrs Rehman Weaving Factory (Regd.) v. Industrial Development Bank of Pakistan PLD 1981 SC 21, ' As is clear from the above resume the question involved in this appeal is; whether, the date on which the appellant's suit was dismissed for non-prosecution, was fixed for the "hearing" of the "suit". In the facts and circumstances, the judgments relied upon from the appellant's side as noticed above, support him, in coming to the conclusion that the order of appointment of a receiver having already been made the question for which the case stood adjourned to the date when the suit was dismissed related only to nomination of the receiver. Undoubtedly it was not for the progress of the main suit. It was a part of ancillary proceedings in the suit that an order for appointment of receiver having been passed he was yet to be nominated. The "progress" of the "suit", in so far as the material issues between the parties are concerned, was not involved. Learned counsel for the respondent failed to cite any law or advance any cogent argument to hold that the date fixed in this case, on which the suit was dismissed for non-prosecution, was for the "hearing" of the "suit". Accordingly, there being nothing else to be discussed, in this simple case of a wrong order of dismissal for non-prosecution, the impugned judgment is liable to be set aside. The question of limitation firstly would not arise. In any case there is nothing to suggest that the matter in this behalf, is not covered by the judgment of this Court in case of Messrs Rehman Weaving Factory, noticed above.
9. ' Accordingly, this appeal is allowed and the case is remanded to the learned trial Court for further proceedings in accordance with law. It is, with the consent of both the parties, further directed that nomination of Mr. Muhammad Iqbal Khan, Advocate as receiver in this case, shall continue till an order otherwise is passed in accordance with law.
10. ' There shall be no order as to costs.