SHAFIUR RAHMAN, J.---Leave to appeal was granted to examine whether the dismissal of the earlier suit (Suit No, 691/1 of 1985) was one under Order IX, Rule 8 of the Code of Civil Procedure so as to bar a subsequent suit under Order IX, Rule 9 of the Code of Civil Procedure.
2. The appellant was aggrieved by a sale made by registered deed by the predecessor-in-interest of respondents Nos. 3 to 15 in favour of respondent No,1, through his attorney respondent No,2. He, therefore, instituted a civil suit on 27-11-1985 claiming a declaration that he was owner of a portion of the property sold. In the alternative, he sought to pre-empt the sale. On 28-11-1985, the appellant was directed in respect of the alternative relief to deposit a sum of Rs,5,25,000 before 23-1-1986.
The appellant filed an application for substituting the order of cash deposit by one of security which was rejected on 19-1-1986. On the date fixed, i,e,, 23-1-1986, the defendant/respondent No,1 was present but none else, nor was the pre-emption amount deposited. For these reasons, the suit was dismissed for non-prosecution by the plaintiff.
3. The appellant again instituted a civil suit (Suit No,45/1 of 1986) on the same cause of action claiming the same reliefs. An objection was taken to its competence which has been upheld throughout, the last order being that of the High Court dated 234-1989 passed in Regular Second Appeal No,30 of 1986.
4. Mr.Muhammad Shah Badshah, Advocate, the learned counsel for the appellant has taken up two grounds in support of this appeal. In the first place he has contended that the date fixed on which the plaintiff did not appear and the defendant No,1 did appear was not a date fixed for hearing and as such dismissal for non-prosecution could not take place and could not be taken to be under Order IX, Rule 8 of the Code of Civil Procedure so as to bar a subsequent suit under Order IX, Rule 9 of the Code of Civil Procedure. This ground has been noted in the leave granting order. The learned counsel has placed reliance on Mst.Ghulam Sakina and 6 others v. Karim Bakhsh and 7 others (PLD 1970 Lah. 412), Rahim Bux and another v. Gul Muhammad and 2 others (PLD 1971 Lah. 746) and Manager, Jammu and Kashmir Siate Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678) in support of this proposition.
' Another ground taken up by the learned counsel, not noted in the leave granting order, is that the suit with regard to title was primarily directed against the defendants/respondents Nos. 2 to 15 and not against respondent No,1 who had appeared when the earlier suit was dismissed for non- appearance of the plaintiff. According to the learned counsel such a dismissal should be taken to be against defendant No,1 under Order IX, Rule 8, C.P.C. And against other respondents under Order IX, Rule 3, C.P.C. And in respect of latter the subsequent suit would not for that reason be barred. He has relied on Makundi Singh and another v. Parbhu Dayal and another (AIR 1926 Allahabad 169), Parbhu Dayal Singh and another v. Tirbhuwan Singh and others (AIR 1925 Allahabad 425) and Damu Diga v. Vakrya Nathu and others (AIR 1920 Bombay 54) in support of this proposition.
5. Mr. Abdul Hakim Khan, Advocate, the learned counsel for the respondents Nos.1 and 2 on the other hand pointed out to the order of the Court fixing the date i,e, 234-1986; to the summons that had issued and to all provisions of Order X, Rules 1 and 2 also Order V, Rule 1 of the Code of Civil Procedure to contend that the date fixed was for hearing. Besides, according to him, the provisions of Order IX, Rule 8 of C.P.C. Are mandatory and in view of the absence of the plaintiff and the presence of the defendant No, 1, the suit had to be dismissed which was done in accordance with law.
6. An examination of the record shows that the date fixed in the suit namely 23-1-1986 was for settlement of issues. It was so stated in the order of the Court dated 28-11-1985. The summons had issued in Form No,2 of the Appendix B of the Code of Civil Procedure. What is to be done on such a date is indicated in Order V, Rule 1, C.P.C. In the following words:-- "1. Summons.-- (1) When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified: ' Provided that no such summons shall be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiff's claim.
(2) A defendant to whom a summons has been issued under sub-rule (1) may appear--
(a) in person, or
(b) by a pleader duly instructed and able to answer all material questions relating to the suit, or
(c) by a pleader accompanied by some person able to answer all such questions.
(3) Every such summons shall be signed by the Judge or such officer as he appoints, and shall be sealed with the seal of the Court."
' The proceedings that can take place on that date are indicated in Order X, Rules 1 and 2 in the following words:- "1. Ascertainment whether allegations in pleadings are admitted or denied.- - At the first hearing of the suit the Court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement (if any) of the opposite party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. The Court shall record such admissions and denials.
2. Oral examination of the party or conmanion of party,- At the first hearing of the suit, or at any subsequent hearing, any party appearing in person or present in Court, or any person able to answer any material question 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 it thinks fit, put in the course of such examination questions suggested by either party."
7. All these provisions fairly well indicate that this hearing that had to take place on 23-1-1986 was to be a meaningful hearing. On that date the absence of the plaintiff necessarily entailed the dismissal of the suit. The cases cited have no relevance because; in the case of Mst. Ghulam Saikna (PLD 1970 Lah. 412) an interlocutory order had to be passed on the date fixed, in the case of Rahim Bux (PLD 1971 Lah. 746) the case was taken up on a date not fixed for hearing in the case at all but on an accelerated date without notice and in the case of Manager, Jammu and Kashmir State Property in Pakistan (PLD 1975 SC 678) only general observations have been made with regard to what amounts to hearing and nowhere detracting from the provisions of Order V, Rule 1 and Order X, Rules 1 and 2 of the Code of Civil Procedure.
8. As regards the alternative ground taken up during the course of the arguments, we find that the main contesting respondent/defendant for both the reliefs of declaration as well as pre-emption was defendant/respondent No,1. He was the vendee of the title of the other defendants and the vendee in the preemption suit. It is from him that the property had to be recovered for either of the reliefs. The other defendants/respondents having parted with the property in his favour before the institution of the suit, it was he who was the person against whom relief was sought. Therefore, divisibility of the interest of the defendants for the purposes of treating dismissal against one set under Order IX, Rule 3 and against other set under Order IX, Rule 8, C.P.C. Cannot be of avail for any purpose to the appellant on the facts of this case.
9. We found no merit in this appeal and the same is dismissed, with no order as to costs.