BASHARAT AHMAD SHAIKH, J.---A civil suit filed by the respondents, Muhammad Siddique and others, was dismissed for default of appearance. Application for restoration was dismissed. Appeal taken to the District Judge also failed. However the High Court has set aside the order mentioned above and the suit of the respondents has been restored on payment of Rs.2,000. Appellants, Muhammad Azam Khan and another, seek reversal of the order passed by the High Court through this appeal which has been filed with leave of the Court.
2. Facts of the case are that two cross-cases between the parties were pending in the Court of Sub-Judge, Bagh. The suits were consolidated and main proceedings were being taken in the suit filed by the present appellants. The evidence of the appellants had already been recorded and the respondents. Muhammad Siddique and others, were examining their witnesses. On 27th of October, 1991 Muhammad Siddique Khan and others did not appear before the trial Court. Consequently ex parte order was passed against them in the suit filed by the appellants while the suit filed by Muhammad Siddique Khan and others was dismissed. On 14th of November ex parte order passed against Muhammad Siddique and others was set aside. There is no dispute about that order. The respondents initially did not file application for restoration of the suit. They did so on 30th of June 1992 after the period of limitation. Had expired long time back. The application was resisted whereupon issues were framed and evidence was recorded. The application was rejected.
3. In the restoration application, the respondents stated in the suit filed by Muhammad Azam Khan and others that ex parte proceedings were ordered against them on 27th of October, 1991 but the order was vacated on 14th of November. Thereafter they were regularly appearing before the Court.
It was stated that the suit filed by them should have been attached with the file of the cross-suit.
On 27th of October the plaintiff did not attend the Court due to black day. It was stated that even otherwise the files were consolidated and it was only on 29th of June that the plaintiff came to know that the suit had been dismissed for default of appearance.
4.Application for restoration was dismissed on the ground that no material had been brought on record in support of the application. It was also observed that no proof in respect of observance of black day on 27th of October, 1991 was available on record and therefore the verbal statement that black day was observed on that day had no value. It was observed that the application was moved after eight months and could not be accepted without convincing proof. The learned District Judge, Bagh, while rejecting the appeal filed by the respondents, observed that adverse orders were passed against them on the same day but the respondents only moved one application which was accepted and the ex parte order was vacated but they failed to move application for restoration of the other suit Within time. The application was rejected for being barred by time. .
5. In the order under appeal a learned Judge in the High Court observed that it was in his personal knowledge that on 27th of October, 1991 . Black day was observed in Azad Jammu and Kashmir. It was also observed that when Muhammad Siddique appeared before the trial Court in support of the restoration application he admitted that he came to know on 28th of October that the suit filed by him had been dismissed. However the learned Judge expressed the view that lack of proper legal advice was the only reason for which application for restoration was not moved within time. It was further observed that Courts have always encouraged fair trial. The application for restoration of the suit was accepted.For these reasons.
6.In my view the basic question involved in the case is of limitation. Admittedly it became known to respondent No. l on 28th of October that the suit had been dismissed. The reason which has prevailed with the learned Judge in the High Court is that there was lack of proper legal advice. In my considered view, this reason is not legally sustainable. The respondents did not plead that there was lack of proper legal advice. It is also not on relord as to what wrong A advice, if any, was given to the respondents. In any case wrong legal advice on an unambiguous legal provision is not a recognised ground for condonation of delay.
7. A perusal of the restoration application shows that the plea taken by the respondents was that they had acquired knowledge about dismissal of their suit on 29th of June and the restoration application was being promptly filed on 30th of June. It means that the limit for filing the application was sought to be counted from the date of knowledge. However when Muhammad Siddique, respondent No. l., appeared as a witness he admitted that he had come to know about the dismissal of suit on 28th of October. By falsifying the averment made in the application that relevant knowledge was acquired on 29th of June, the defendants destroyed the foundation on which the restoration application was based.
8. The learned Judge in the High Court has recorded his personal knowledge that black day was observed on 27th of October, 1991. The respondents were given opportunity to produce evidence in support of averments made in the restoration application. In my opinion a finding can be based only 8 on evidence or upon judicial notice. Moreover, the fact that black day was observed on 27th of October, 1991, even if true, does not advance the case of the respondents, because if there was any public meeting or procession in connection with black day, which is not proved, each of the respondents was not bound to attend it. It was not furnished a valid cause for not attending the Court.
9. The learned counsel for the parties have cited a number of cases in support of their respective contentions. The learned counsel for the respondents cited the following cases. In Messrs Ghulam Farid Muhammad Latif V.-The Central Bank of India Limited, Lahore (PLD 1954 Lahore 575), a learned Judge of the Lahore High Court dismissed a revision petition filed in the High Court tochallenge an order by which restoration application was accepted. Apart from accepting some other contentions raised before the High Court in support of th order by which the suit had been restored, it was observed by the learned Judge .Follows:- "It is urged that both the Central Bank and the firm Ghulam Farid Muhammad Latif should be considered as plaintiffs in the consolidated suit, because if either of the plaintiffs was to be granted a decree, that decree would have been passed in the consolidated suit. Therefore, the suit could not be dismissed under Order 1X, rule 8 as that rule applies only if there are more than one plaintiff and all of them do not appear. In other words the rule applies if no plaintiff is present. In the present case one of the plaintiffs that is, Messrs Ghulam Farid-Muhammad Latif, was represented by counsel on the 8th November, 1952, and, therefore, an order of dismissal for default under Order IX, rule 8 could not be made by the Court. These arguments are not without force. "
10. The argument which was found by the learned Judge to be "not without force" does not impress me. I am unable to persuade myself to hold that when C cross-suits are consolidated each set of plaintiff should be considered as plaintiffs in the cross-suits filed by his rival plaintiffs. The requirement of law is that a plaintiff or his authorised agent should be present at each date of hearing otherwise the suit may be dismissed. Thus a duty is imposed on a plaintiff to be vigilant and guard against the risk of dismissal of his suit. This duty is C performed by a plaintiff for his own benefit and not for the benefit of his rival party. In spite of consolidation the cross-suits do not loose their separate existence and all duties imposed by law continue unchanged. In my view a plaintiff in every suit is required by law to be present and the consolidation of suit, which is procedural in nature, does not change this basic requirement.
11. In Faqir Alam and 10 others v. Ajab Khan and 15 others (1986 CLC 1320 (SC AJK) and Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies (PLD 1964 SC 97) it was held that if a suit is dismissed on a date which is not "a date of hearing" the order is void. The position in the .Present case is not similar because the date on which the suit was dismissed was fixed for recording of evidence which is indisputably a date of hearing.
12. A large number of cases was also cited by Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellants. In view of the conclusion reached by me I need not advert to them.
As an upshot of the foregoing discussion the judgment of the High Court is set aside and the judgment of the District Judge is restored with the result that the application for restoration of the suit filed by respondent Muhammad Siddique and others shall stand dismissed as being time- barred. Costs would follow.