' This judgment shall also dispose of Civil Revisions Nos.726 and 727 of 1999. The petitioners filed a civil suit against the respondents, wherein they questioned the alienation of the suit land in favour of Hadayat Ali, who is a respondent in all the above mentioned three civil revisions. The suit was contested by the said Hadayat Ali respondent. In the first instance, the plaint was rejected by the learned Civil Judge in all the three cases, but on appeal filed by the petitioners, the matter was remanded by the learned Appellate Court. After the remand, issues were framed and the case was posted for the evidence of the petitioners. However. From the copy of the order sheet filed with the civil revision, it appears that the case was fixed for filing of wrtlen statement on 22-7-1996, which was not ready and an adjournment was granted for filing of written statement on 28-7-1996. On this date counsel for the parties stated that a compromise is being effected and the case be adjourned. It was consequently adjourned to 12-9-1996. The order is reproduced as under:- {{URDU TEXT}} ' On 12-9-1996, the petitioners were absent, so was their counsel, while counsel for Hadayat Ali was present. The suit was dismissed in default. On 20-11-1996 an application was filed for restoration of the suit, wherein it was stated that some relative of petitioners was ill in district Jhang and they had gone there and as such were not able to appear on 12-9-1996; and that they had returned back on 20-11-1996, when the application was filed. This application was resisted by Hadayat Ali respondent.
The learned Trial Court heard arguments on the application and rejected it on the ground that it was barred by time. It was also observed that the petitioners have not given any written proof of the ailment of their relative and their visit to district Jhang. An appeal was filed by the petitioners, wherein it was urged that 12-9-1996 was not a date of hearing in the suit and as such the suit could not have been dismissed in default on the said date. The learned Additional District Judge, Wazirabad, who heard the appeal did not agree and dismissed the appeal on 9-2-1999.
2. Ch. Muhammad .Anwar Bhindar, learned counsel for the petitioners relied on the case of Ghulam Fareed v. Noor Muhammad and others decided by this Court and reported as 1986 CLC 2507, to support his plea that 12-9-1996 was not a date of hearing. On the other hand, Mr. Taki Ahmad Khan.
Relied upon the case of Abdul Shakoor Haji Amin-ud-Din v. Miss Mumtaz and others (PLD 1961 (W.P.)
Karachi 145) to insist that 12-9-1996 was a date of hearing in the suit.
3. I have gone through both the judgments apparently containing conflicting views as to whether a date fixed for compromise is a date of hearing or not. I find that the judgment relied upon by the learned counsel for the petitioners is squarely applicable to the facts of the present case. In this case, the suit was at the stage of recording of evidence of defendants, when an application for amendment of the plaint was tiled and the matter was fixed on 12-1-1977 for hearing of arguments on the said application, when the counsel reported that negotiations for compromise between the parties were going on. The case was adjourned for the said purpose to 29-1-1977 and on this date since the plaintiffs were absent, the suit was dismissed in default. His lordship agreeing with the contentions of the plaintiffs' counsel observed "obviously on this date the parties were to inform as to whether the negotiations for compromise had materialized or not, it cannot, therefore, be said that the suit was fixed for hearing on that date." On the contrary in the case of Abdul Shakoor-Haji Amin-udDin (supra) relied upon by the learned counsel for respondent-Hadayat Ali, the order as reported in the said report was to the following effect:-- "On the joint request of the parties, adjourned to 31.1-1958, as the parties are negotiating a compromise. The case will be taken up for hearing on 31-1-1958, if compromise be not filed by then."
' Chief Justice M.R. Kayani observed that the case was fixed for hearing on 20-12-1957 and the Court had warned the parties that the hearing will take place in case compromise is not filed by 31-1- 1958. Thus, the said date on which the defendant in the said case, absented himself was by all means a date fixed for hearing i,e, recording of evidence of the parties.
4. In the present case as well, the parties had sought adjournment for effecting a compromise and on 12-9-1996 it was to be reported to the Court as to whether a compromise, had taken place or not. It was not stated in the order, dated 28-7-1996 that in case the compromise is not filed, written statement must be filed. Thus, only said 'information was to be given and even the learned counsel for Hadayat Ali respondent, who was present, could have given the said information and the case could then have been fixed, for filing of written statement. It does not at all appear form the order, dated 12-9-1996 that the trial Court was even aware of the proceeding that was to take place on 12-9-1996, as it did not try to elicit the requisite information from the counsel present. Learned counsel for the petitioners has also drawn my attention to the case of Muhammad Hussain v. Allah Dad and 13 others (PLD 1991 SC 1104), where their lordships expressed disagreement with the learned counsel, who pleaded that date for filing of the written statement has to be treated as a date for hearing of the suit. In this view of the matter even if the order, dated 28-7-1996 was couched in the language of the order dealt with in the case of Abdul Shakoor-Haji Amin-ud-Din supra relied upon by the learned counsel for Hadayat Ali respondent, 12-9-1996 could not be said to be a date for hearing in the suit. Needless to add that the suit could have been dismissed in default for absence of plaintiffs only on a date that was date of hearing in the suit. The order, dated .12-9-1996 was, therefore. Without lawful authority and without jurisdiction and as such was not governed by limitation provided in Article 163 of the Schedule to Limitation Act, 1908. The said article prescribes limitation of 30 days for restoration of the suit, which is dismissed in default on a date fixed for hearing of the suit. The learned lower Courts, therefore, illegally refused to exercise jurisdiction vesting in them by rejecting the applications of the petitioners for restoration of the suits. $. The fact remains that the petitioners failed in satisfy the Courts below for reasons of their absence on the said date resulting in delay in the proceedings and Hadayat Ali respondent suffering to ,face three tier proceeding. However, this is a matter, which can be compensated by costs.
6. The present civil revision is allowed subject to payment of Rs,500 as costs. The costs will be payable to Mr. Taki Khan, learned counsel for Hadayat Ali respondent, against receipt.
7. The result would be that subject to payment of the said amount as costs. The suit of the petitioners shall stand restored to its original number and will be tried and decided by the learned trial Court in accordance with law. A copy of the order be sent to the learned Civil Judge, Wazirabad, who shall requisition the records of the suit and issue notice to the parties before proceeding further with the same.