' The petition is addressed against an order of learned Sub-Judge, Mirpur, passed on February 20, 1990, whereby accepting the application for restoration of the suit of Rehm Ali respondent, dismissed for want of prosecution on May 6, 1987, was restored.
2. The petition has arisen in the circumstances as Rehm Ali brought a suit for perpetual injunction in respect of land measuring 25 kanals comprising survey number 233 (present number 70/1), Shamilat-e-Deh, on the basis of his possession and construction of a residential building over there. The suit was instituted on January 14, 1986. During the pendency of the suit, another suit was instituted by Rehm Ali in respect of the same land on April 12, 1987. The previous suit was awaiting framing of issues when on February 25, 1987, an application was moved on behalf of the defendant-petitioners wherein it was stated that Imam Ali, defendant in the suit, had died on August 28, 1986. The plaintiff had the knowledge of death of Imam Ali, defendant, but he failed to implead his legal heirs. Thus, it was pointed out that on account of failure of the plaintiff to implead legal heirs of the deceased defendant, his suit had abated. Objections to the application were filed on. March 22, 1987 and the case was adjourned for arguments. On April 27, both the parties were represented by their Counsel when Abdul Karim, one of the defendants, was also present. On that day, the case was adjourned for arguments to May 6, 1987. On May 6, as no one appeared on behalf of the plaintiff, the suit was dismissed for want of prosecution. An application for restoration of the suit was moved on August 24, 1989, i.e, 2 years, 3 months and 18 days after the dismissal of the suit. The application was opposed by the petitioners.
3. The learned Sub-Judge accepted the application as in his view, the day on which the suit was dismissed for want of prosecution, was not a date of hearing of the suit. Thus, relying upon the decisions of Lahore and Baghdad-ul-Jadid High Courts reported in PLD 1970 Lahore 412 and PLD 1964 BJ 8, the application was accepted and the suit was restored.
4. Raja Lehrasap Khan, the learned Counsel for the petitioners assailed the aforesaid order and emphasised that the date to which the proceedings were adjourned, was fixed for arguments to decide whether on account of failure of the plaintiff to implead the legal heirs of the deceased defendant, the suit had abated or not. In view of the learned Counsel, it was definitely a date of hearing of the suit. Therefore, the application for restoration should have been moved within 30 days and it was enjoined upon the plaintiff to show good cause for his absence. Mr.Liaqat Ali, the learned Counsel for the opposite side, supported the impugned order by relying on an authority of this Court reported as PLD 1972 AJ&K 7.
5. The relevant provisions of law which apply to a state of facts when the plaintiff fails to appear to prosecute his suit, are covered under Order 17, Rule 2 and Order 9, Rule 8, Civil Procedure Code.
Under the provisions of Rule 2, when either of the parties fails to appear on a date to which the proceedings are adjourned, the Court is empowered, unless it postpones the hearing of the suit for some other good cause, to act under the provisions of Order 9, C.P.C. Under Order 9, Rule 8, it is postulated that when the defendant appears and the plaintiff fails to appear on a date to which the suit is adjourned for hearing, the suit shall be dismissed.
6. The consensus of the superior Judiciary of the sub-continent is that when a Court acts under the provisions of Rule 8, it has to ensure that the date to which the proceedings were adjourned when the plaintiff failed to appear, was the date of hearing of the suit. Unless it was satisfied that it was a date of hearing of the suit, it was not permissible to dismiss the suit under Rule 8. Therefore, the emphasis or the burden of the spirit of law was on the term "hearing of the suit". Expression "hearing of the suit" was construed as the stage of recording of evidence, hearing of arguments or consideration of questions relating to the suit for final adjudication and not consideration of merely interlocutory matters. The aforesaid interpretation of the expression "hearing" finds support from Habib Bank's case, PLD 1983 SC (AJ&K) 223, PLD 1975 AJK 114, PLD 1972 AJK 7 and a case decided by this Court today, titled "Habibur Rehman v. Mst.Resham Bibi and others".
7. In present case, it is noticed that the date on which the suit was dismissed for want of prosecution, was fixed for arguments to consider the question of abatement of the suit. The proposition relating to abatement of the suit was definitely a stage of consideration of a question relating to the suit for final adjudication of the matter. The provisions of Order 9, Rule 8, thus squarely controlled the proposition under consideration.
8. Article 163 of the Limitation Act postulates limitation of 30 days for an application for restoration of the suit dismissed for want of prosecution. The limitation starts from the date of dismissal of the suit. In present case, the application was obviously beyond time as it was moved after more than two years. No convincing sufficient or good cause was shown for such a delay. It was rightly pointed out by the learned Counsel for the petitioners that in order to seek condonation of delay, the plaintiff-respondent was under a heavy duty to satisfy the judicial mind of the Court that he was restrained by force of circumstances beyond his control to move the Court within the stipulated period for restoration of his suit. The onus was not discharged properly. The application was, therefore, clearly beyond time.
9. In view of the aforesaid position, the order passed by the learned Sub-Judge being defective, is unsustained. The petition succeeds and the impugned order is set aside. The application for restoration being beyond time, is hereby dismissed. No order as to costs.