1. ' This Revision Application arises from rejection of the plain in Suit No,120 of 1990 by the learned Vth Senior Civil Judge, Karachi (East). That order, dated 19-11-1990, was set aside by the learned IIIrd Additional District Judge, Karachi East, in Civil Appeal No,165 of 1990 and the case was remanded for decision on merits to the trial Court. The applicant, N.E.D. University of Engineering and Technology, applies for revision against such judgment in appeal.
2. ' For the purposes of finding out whether a plaint, in terms of Order VII, rule 11, C.P.C., is barred by any law, which is what was urged before the learned trial Court by the present applicant, we have to see the plaint itself and document(s) filed with the plaint or even document(s) relied upon in it. This is so because a plaint would stand or fall under the concept of Order VII, rule 11 (d), C.P.C., for what is either expressly or implicitly stated therein.
3. ' Proceeding on this premises, learned counsel for the applicant has referred me to paragraph 2 in the plaint, which runs thus:-- "2. That in the year 1983-84 the plaintiff was admitted as regular student in the college and he has been passing through every semester when all of a sudden in 1987 plaintiff was served with a show-cuase notice dated 26-1-1987 with the allegation of tampering in the mark sheet and thereafter plaintiff was compelled to file Suit No,144 of 1987 wherein the show-cause notice was challenged and injunction was sought for preventing enforcement of the notice and in the said suit status quo was granted and ultimately on 24-8-1989, however, the suit was dismissed for non- prosecution."
4. Mr. R.H. Farooqui, for the N.E.D. University (applicant), has urged that the dismissal for non- prosecution of the earlier suit, spoken of in the reproduced paragraph, was in fact a dismissal under Order IX, Rule 8, C.P.C. And if that was so a fresh suit by operation of Order IX, Rule 9, C.P.C.
5. Was manifestly barred. Now, a suit can be dismissed for non-prosecution in a number of ways of which even Order IX, C.P.C., as a whole, is not exhaustive. Then, there are some provisions in Order IX, C.P.C., itself dismissals for default where under manifestly do not bar any fresh suit, provided always that the period of limitation for filing such fresh suit is available. Such are dismissals covered by rules 2, 3 and 5 of Order IX, C.P.C. There are, however, other provisions in Order IX, C.P.C., which contemplate bar of a fresh suit even when the dismissal of the suit is for non-prosecution.
6. Rules 8 and 9 are such provisions. Rule 12 of Order IX may also have similar connotation. Looking beyond Order IX, C.P.C., there can be dismissals for non-prosecution in umpteen ways. As we know, Order IX, by its own force, applies only to the first date of hearing; for subsequent dates the rules in Order IX become invocable in virtue of rule 2 of Order XVII, C.P.C. Thus dismissals for non- prosecution on adjourned dates of hearing have a nexus with Order XVII, Rule 2, C.P.C. Besides, the dismissals for non-prosecution upon transfer of a suit from one Court to another or upon remand of the suit from a higher forum or on account of non-compliance with orders of the Court on a date other than a date of hearing in the suit and more of similar situations would be covered not by Order IX, C.P.C. In its pristine form but on account of reading the principles in Order IX, C.P.C. With other provisions in the Code. There can even be dismissals and recalls thereof under other provisions of law without any reference to Order IX, C.P.C.
7. ' Clearly, bar of a fresh suit, contemplated by Order IX, Rule 9, C.P.C. Involves a penal provision and must be restricted to the precise terms of that rule. Manifestly section 2(2), C.P.C. Which defines a decree has expressly excluded a dismissal on account of default. If so and if such dismissal is not a decree, the adjudication would not operate as res judicata within the meanings of section 11, C.P.C.
8. And no bar for a fresh suit would follow. Thus, bar of a fresh suit in the circumstances of Order IX, rule 9 is an exception to the general principle. It is a prohibition out of the ordinary. It is penal in its impact. All circumstances, therefore, relatable to rule 8 must subsist before the bar of rule 9 in Order IX, C.P.C. Can be pressed into service.
9. ' The foregoing are serious questions. Merely because the plaintiff in the suit had stated that his earlier suit had been dismissed for non-prosecution, the plaintiff not even saying that on the date the defendant was in attendance (a condition in rule 8 of Order IX), does not lead to any inference that the dismissal was under Order IX, Rule 8, C.P.C. Therefore, on a plain reading of the plaint the bar of Order IX, Rule 9, C.P.C. Could not be spelled out and the plaint could not be rejected.
10. Mr. R.H. Farooqui, with his customary tenacity, has urged that in actual fact the defendant was present and the plaintiff was missing when the previous suit, being called up, was dismissed for non-prosecution. He says that the orders of the Courts below and, particularly, the order in appeal should reveal that and a matter on record may be adverted to for pleading want of cause of action or bar of suit, as envisioned in Order VII, rule 11(a) and (d), C.P.C. As said earlier, a plaint is to be maintained or rejected in terms of the said provisions in rule 11 on the basis of its recitals or those in the documents on which it is founded. It is in rare cases that the Court may travel beyond this.
11. When it does, it does so only towards advancement of the cause of justice. Nothing short of that will suffice.
12. ' Now let us see what would happen if other material, on the record is approached to assess whether the suit was barred by Order VII, Rule 11, C.P.C. In the first place, we will have to see the plaint in the previous suit. That plaint should at least be similar to the present one, if not identical.
13. The parties should be the same. Here it is admitted that the applicant was subsequently added in the instant suit on its own seeking, while it was always there in the earlier suit. Next, it is said that in the former suit the plaint was rejected in the trial Court and the case was remanded on appeal. It was on remand that avowedly the plaintiff defaulted in appearance while the defendant was present. There were two defendants in that suit. Whether both were present remains to be seen. It will also have to be examined whether the dismissal for non-prosecution occurred on the first date after remand. If so, could that be a date of hearing? At any event, was it the first date of hearing within the terms of Order IX, Rule 8, C.P.C. So as to attract the ensuing rule in the Order? No Court, cognizant of its heavy responsibilities and impelled only by the higher considerations of justice would be hasty enough to reject the plaint straightaway in such circumstances. Seven Stars Goods Transport Co. v. Administrator, K.M.C. PLD 1976 Kar. 21, Bilquees v. Bhana PLD 1980 Lah. 322, Kazim Hussain v. Muhammad 1983, CLC 2475.
14. ' This does not meant that, in the ultimate analysis and in the due course of time, the defendant(s) would in any way be precluded to show as to under what precise provision of law the earlier suit was dismissed. Even a question of maintainability on such basis and on pleas in the written statement(s) can be framed, examined and determined. That should meet the ends of justice: Abdur Rahim v. K.DA. 1988 CLC 1207.
15. ' Nothing, however, which is said hereinbefore or in the appellate forum or by the trial Court, when rejecting the plaint, would have any binding effect when a similar question is re-approached in due course of law.
16. ' In such circumstances, this Revision Application is dismissed and the case is remanded to the trial Court. Parties would bear their own costs throughout.