' CH. MUHAMMAD NASIM, J.---Mehdi Hassan appellant-plaintiff instituted a suit against Ahmad Ali respondent-defendant for the specific performance of agreement of sale said to be reduced into writing on 18-9-1994, whereby the respondent agreed to make sale of the suit property comprising an area of 191 Kanals 5 Marlas of land fully described in the plaint in consideration for an amount of Rs,8,75,787. According to him he had paid the consideration amount to the respondent and transferred the possession of the suit land to him but was not willing to perform his part of the contract about the registration of the sale-deed or the sanction of the sale mutation and that hence the suit. The suit was resisted by the respondent-defendant who submitted the written statement through Malik Taj Muhammad Taj, Advocate on 12-3-1995 who on the same date withdrew himself as well as the written statement and written reply. It is narrated in order dated 27- 3-1995 that the respondent-defendant was directed to submit a written statement and the written reply to the application. Thereafter on 28-6-1995 the trial Court with respect to the previous written statement withdrawn on 12-3-1995 formulated the following issues:--
(1) Whether the defendant has validly submitted the written statement and written reply in this suit ? OPP.
(2) Whether this written statement is collusive, fraudulent and illegal? OPD.
(3) Relief.
' The matter was adjourned to 16-7-1995. The evidence of the plaintiff was not present on this date and the matter was adjourned to 13-9-1995 for which date the plaintiff was directed to appear personally. On 13-9-1995 neither the plaintiff appeared personally nor produced his evidence and the suit was adjourned to 10-10-1995. On this date the trial Court passed the order' that the plaintiff had not appeared in spite of the direction made thereof and that there being no ground for granting the adjournment in the matter dismissed the suit. Under Order IX, Rule 12, C.P.C. The file was directed to be consigned to the record room after necessary arrangement. Feeling aggrieved Mehdi Hassan appellant-plaintiff has filed this regular first appeal who has not paid the court-fee in the sum of Rs,15,000.,
2. We have heard the preliminary arguments. Since the impugned order dated 10-10-1995 has been passed under Order IX, Rule 12, C.P.C. We asked the learned counsel for the appellant to address his arguments about the maintainability of this regular first appeal. In obedience thereto he laid the emphasis that the decree sheet was drawn/prepared on the basis of the impugned judgment dated 10-10-1995 and thus against the impugned judgment and decree the appeal is maintainable under section 96(1), C.P.C. He expressed his willingness to make up the deficiency of court-fee in the sum of Rs,15,000, if the direction is made in the matter. We are however, of the opinion that against judgment/order dated 10-10-1995 this appeal is not maintainable before this Division Bench of the High Court. To reach at the right conclusion in the matter it would be convenient to reproduce Rules 12 and 8 of Order IX, C.P.C. As under:-- "12. Consequence of non-attendance, without sufficient cause shown of party ordered to appear in person.--Where a plaintiff or defendant, who has been ordered to appear in person, does not appear in person, or show sufficient cause to the satisfaction of that Court for failing so to appear, he shall be subject to all the provisions of the foregoing rules applicable to plaintiffs and defendants, respectively, who do not appear.
8. Procedure where defendant only appears.--Where the 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, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder."
' A perusal of the aforesaid procedural law has made out that due to the absence of the plaintiff in spite of the direction passed by the Court the suit can be dismissed for want of prosecution obviously under Order IX, Rule 8, C.P.C. As in, the instant case. The remedy available to appellant was under Rule 9, Order IX, C.P.C. Which reads as under:-- "9. Decree against plaintiff by default bars fresh suit.-- (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for the order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his nonappearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite-party.
(3) The provisions of section 5 of the Limitation Act, 1908 (IX of 1908) shall apply to applications under sub-rule (1)"
The only fact that the decree-sheet was prepared, on the basis of impugned order dated 10-10- 1995 is not enough to bring the case of the appellant within the purview of section 96(1), C.P.C. That is an illegal action of the trial Court because if a suit is dismissed for want of prosecution the decree-sheet is not drawn/prepared. It seems that to earn a unit the trial Court proceeded in that direction without jurisdiction. An illegal act or working without jurisdiction of the trial Court as in the instant case with respect to the drawing of decree-sheet on the basis of the impugned order passed under Order IX, Rule 128, C.P.C. Would not change the texture of the substantive or procedural law. The intention of the Legislature cannot be ignored. Hence the drawing of the decree-sheet in the light of the order passed under Order IX, Rule 12, C.P.C. About the dismissal of the suit for want of prosecution would not make the impugned order dated 10-10-1995 as appealable within the purview of section 96(1), C.P.C. Thus it can safely be held that this aspect of the matter is liable to be ignored which shall not be helpful to the learned counsel for the appellant in his assertion that impugned judgment dated 10-10-1995 is appealable.
3. The only irresistible conclusion which can be drawn from the aforesaid state of affairs, analysis of the material and discussion would be that this appeal is not maintainable and that he shall have to proceed under Order IX, Rule 9, C.P.C. Before the trial Court especially when assertion of the learned counsel for the appellant is that the trial Court was intimated one day before through post etc. About his ailment justifying his absence on 25-10-1995 and this question of fact if agitated shall have to be established and disposed of on the basis of the evidence. In the circumstances there is no need to direct the appellant to make up the deficiency of court-fee in the sum of Rs,15,000 and such an order would not only be an exercise in futility the same would also be a burden on the pocket of the appellant without any legal requirement.
4. For what has been said above, we hold that this appeal is not maintainable which is dismissed in limine. The appellant may proceed in accordance with law before the Court of competent jurisdiction.