' Habibur Rehman and others moved this Court for setting aside compromise decree passed on July 1979 which was passed accordingly ex parte against the petitioners on December 24, 1978. The application was contested by the decree-holders who repudiated the claim of the petitioners on all scores. The petitioners produced evidence in support of their respective claim when the case was adjourned to June 6, 1987. On that date, Mr.Riaz Akhtar, the learned counsel who represented the non-petitioners, sought adjournment as he had recently come from abroad and was not prepared to assist the Court in the matter. Thus, the case was adjourned to July 15, 1987. On that date, an application was moved on behalf of the respondents whereby they prayed for summoning Raja Imdad Ali Khan, Advocate as witness. The learned counsel for the petitioners informed the Court that they would file the objections to the application. Thus, the case was adjourned for filing objections to September 30. On that date, no one appeared on behalf of the petitioners whereas Mr.Riaz Akhtar, Advocate representing the respondents was present. Thus, on account of failure of the petitioners to appear for prosecution of their petition, their application was dismissed for non-prosecution. The petitioners applied for restoration of their application on November 18. It was explained that Raja Muhammad Ghazan, one of the petitioners attended the Court. When the case was called for hearing, he was entering the Court room when he met Muhammad Akbar son of Muhammad Zaman who was coming out of the Court. He told him that the case was adjourned to November 17. Muhammad Ghazan informed the date to clerk of his Counsel and went home. On November 17 when he came to attend his case in the Court, he came to know that his application was dismissed on September 30. Thus, the application for restoration was moved the next day. The application was contested by the opponents on facts as well as on the ground of limitation. Raja Muhammad Ghazan in support of his explanation, described in the application for restoration, furnished an affidavit and also produced Ch.Muhammad Taj, Advocate.
The opposite side produced Muhammad Zaman, one of the respondents.
2. Raja Muhammad Siddique, the learned Counsel for the petitioners argued that the order of dismissal of the application for non-prosecution was untenable as it was not the date for hearing of the case. The learned Counsel emphasised that the case was fixed for filing of objections to the application relating to summoning the witness. Thus, the date fixed for filing of objections, could not be construed as date of hearing as contemplated under Rule 8 of Order 9, C.P.C. The learned Counsel relied on Shafait Muhammad's case PLD 1975 AJ&K 114. It was also contended that the limitation prescribed under Ai tide 163 of the Limitation Act, does not apply to the present case as the order of dismissal of application for setting aside ex parte decree, was void ab initio. Mr.Riaz Akhtar, the learned Counsel for the opposite side, argued that the application was beyond time, as such it must be thrown away without applying mind to its contents. The learned Counsel argued that Section 5 of the Limitation Act was not attracted in this case. Moreover, no such application for condonation of delay was moved. He argued that the explanation given in the application for restoration, was self-contradictory. Muhammad Ghazan who moved the application, failed to appear as a witness to corroborate the testimony of Muhammad Taj. Thus, there was hardly a reason to allow the application.
The relevant provisions which regulate the proceedings in a civil action relating to appearance of the parties, are covered under Rule 8, Order 9 and Order XVII, Rule 2, C.P.C. Rule 8 of Order IX postulates that where the A 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. Order XVII, Rule 2, next provides that where on any date to which hearing of suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of modes directed in that behalf of Order IX, or make such other order as it thinks fit. It is quite clear from the language of Rule 2 of Order 17, that when the parties or any one of them fail to appear on the date when the suit is called for hearing, the Court, unless it makes any suitable order, has to advert to the provisions of Order IX. Thus, in case of absence of plaintiff and presence of defendant when the suit is called on for hearing, the Court has to proceed under Rule 8 of Order IX, C.P.C.
3. The condition precedent both under Rule 2, Order XVII and Rule 8, Order IX, C.P.C., is that the suit shall be dismissed for non-prosecution only when it is fixed for hearing and not otherwise. The term 'hearing of the suit' received attention of the Courts in various cases. The consensus is that the word `hearing' means and includes taking of evidence, hearing of arguments or considering the questions relating to suit which enable the Judge to finally dispose of the case. It excludes the application of mind to interlocutory matters and their disposal. In Ghulam Sakeena's case PLD 1970 Lahore 412, Mr.Justice Nasim Hasan Shah, Judge, followed the authority of Ghulam Farid Muhammad Latif's case PLD 1954 Lahore 575 and observed that the expression "hearing of suit" should be construed in ordinary sense of the word and upon that it would mean recording of evidence, hearing of arguments and decision of questions relating to determination of the suit excluding disposal of the interlocutory matters. An identical view was expressed in Allah Ditta's case PLD 1981 Lahore 508. This Court examined the proposition in Shafait Muhammad's case PLD 1975 AJK 114, in the following view:- ' Now let us determine the true import and meanings of the word `hearing', the word 'hearing' means the taking of evidence or the consideration of questions relating to the suit which would enable the Judge to finally come to an adjudication upon it, and not the consideration of merely interlocutory matters."
' In Habib Bank Ltd.'s case PLD 1983 SC (AJK) 223, once again the meanings and import of expression 'hearing' was considered as:- "The word "hearing", it may be observed, has been defined nowhere in the C.P.C. As defined in Wharton's Law Lexicon it means "investigation of a controversy". The word "hearing" therefore, means taking of evidence or consideration of question relating to suit enabling the Judge to come to a final adjudication and not consideration of merely an interlocutory matter. Where the wording of the order indicates (as the case here is, fixation of date not for hearing but for consideration of merely an interlocutory matter ex parte order against the defendant cannot be passed on such a date and if it is done, it being without jurisdiction is a nullity."
4. In the present case, as noticed earlier, the date was fixed not for recording of evidence or hearing of arguments or consideration of matters for its final adjudication, but for objections to the application to summon an Advocate as a witness. Keeping in view the aforesaid dictum of the Supreme Court it has to be accepted that the date fixed for objections to the application was not the date of hearing in the matter. In Mst.Ghulam Sakeena's case referred to above, the date was fixed for filing of replication when on account of absence of plaintiff, the suit was dismissed. It was observed that the date fixed for filing of replication was not the date for hearing of the suit, as such the order of dismissal for want of prosecution was violative of the provisions of Rule 8 of Order IX, C.P.C. It was, therefore, set aside. On this premises, it has to be accepted that in the present case, the date for filing the objections to the application was not the date for hearing the matter.
Therefore, dismissal of the application on account of absence of the petitioners was violative of rules of procedure.
5. In was emphasised by the learned counsel for the non-petitioners that the application was beyond time. An effort was made to convince that the limitation provided under Article 163 of Limitation Act, i.e, 30 days, was applicable to the present application. Article 163 postulates the period for restoration of the suit as 30 days and the limitation commences from the date of dismissal of the suit. The term "suit" was defined under Section 2(10) of the Limitation Act. It lays down that the suit does not include an appeal or an application. In the present case, it is undenied that the matter under consideration was an application for setting aside the ex parte decree and not a suit. In this view of the matter, the provisions of Article 163 of the Limitation Act, would not apply to the present case. In absence of application of a definite Article 0 provided under Limitation Act, the Limitation would be governed by the provisions of residuary Article, viz. Article No,181.
6. It is noticed that the impugned order resulting in dismissal of the matter for want of prosecution was passed on the date when it was not fixed for its hearing as contemplated under the rules of procedure, as such the order of dismissal of the application was without jurisdiction. The order is, therefore, set aside and the application for setting aside the ex parte decree is restored to the file of this Court.