On 27-4-1981 the petitioners filed a suit against the respondents. In the plaint, it was alleged that the last owner, in the suit property was Pathana son of Hassan who made an "Ariat" in favour of his daughter Mst. Rehmat Bibi vide registered deed dated 28-3-1930. The contention was that it was only the usufruct and not the corpus of the property that was transferred. After the death of Mst.
Rehmat Bibi, the respondents got Mutation No. 1062 attested on 18-6-1980 in their favour. According to the petitioners, they being the reversioners of the last male owner, after the death of Mst. Rehmat Bibi, the land ought to have been reverted to them. A written statement was filed by the respondents, wherein, inter alia, it was, stated that earlier the petitioners had tiled a similar suit on the same cause of action which was dismissed under Order IX rule 8, C.P.C. And as such the present suit is barred. The learned trial Court framed a preliminary issue and recorded the evidence of the parties. The learned trial Court dismissed the suit vide judgment and decree, dated 6-11-1982. A first appeal filed by the petitioners was heard by a learned Additional' District Judge, Jhang who dismissed the same on 9-4-1985.
2. Mr. A.K. Dogar, Advocate, learned counse1 for the petitioners argues that the dismissal of the previous suit on 5-12-1980 cannot be considered to be a dismissal under Order IX rule 8, C.P.C. As according to the learned counsel, the suit on the said date was not fixed for hearing and as such could not had been dismissed under the said provisions of law. No one has turned up for the respondents. They are accordingly proceeded against ex pane.
3. I have gone through the copies of the records as has been appended with this Civil Revision.
Exh.D.5 is the copy of the order-sheet of the earlier suit. This copy has been appended as Annex: C to this Civil Revision. A reading of this document reveals that the earlier suit was put up before the learned Civil Judge on 30-7-1980 when he obtained a report from the office and proceeded to issue notices to the defendants for 12-10-1980. On this date, the learned counsel for the plaintiffs as also learned counsel for defendant No. l in the said suit, were present. Their presence was marked by the Reader of the Court who had given a note that the Presiding Officer is on leave. The case was adjourned to 2-12-1980 for summoning of defendants 2 and 3 in the said suit. There is a note by office that process fee has not been deposited. On 2-12-1980, the counsel for defendant No. l in the said suit put in appearance but none appeared for the plaintiffs and the learned Civil Judge proceeded to dismiss the suit for non-prosecution as also for non-deposit of process fee..
4. The learned counsel for the petitioners contends that 2-12-1980 cannot be considered to be a date of hearing in the said suit on the following grounds:--
(i) On 12-10-1980, the Presiding Officer was on leave and it was the Reader who adjourned the case and fixed 2-12-1980 as the next date. According to learned counsel, such a date not having been fixed by the Court could not be deemed to be a date of hearing; and
(ii) No hearing was in fact to take place on 2-12-1980 which was a date fixed for summoning of the defendants in the case.
So far as the said first mentioned contention of the learned counsel is concerned, I do not find any force in the same. The matter pertains to a period after the enactment of Law Reforms Ordinance, 1972. Under the said Ordinance, inter alia, Rule 5 was inserted in Order XVII, C.P.C. Which provides that when on any day the Presiding Officer of the Court is absent by reason of illness or any other cause, the parties to the suit or proceedings set down for that day (notwithstanding the knowledge that the Presiding Officer would be absent) shall appear in the Court in the Court-house on that day and the ministerial officer of the Court authorized in that behalf shall hand over to the parties slips of paper specifying the other date fixed for "proceedings with" the suit or proceeding and signed by him. The said provision came up for examination by the Supreme Court of Pakistan in the case of "Nowsheri Khan v. Said Ahmad Shah" (1983 SCMR 1092). Their Lordships observed at page 444 of the report as follows:-- "The Reader of the Court before the amendment in C:P.C. Was not authorised to fix a date for proceedings with the suit in the absence of the Presiding Officer of the Court but could fix a date for purposes" of enabling the Court to fix another date for the future conduct of the proceedings. It was only as a result of the new Rule 5 inserted in Order XVII, that this has became possible. "
I may note here that in the said case a plea was taken that the Reader had not handed over the slip of paper specifying the next date It was further observed by their Lordships that the date given by the Reader might have IA become the date fixed for proceedings with the suit or proceedings, if the parties were handed over the slips of paper specifying the said other date.
5. Now in the present case, no foundations had been laid down to avoid the implications of the said Rule 5 of the Order XVII, C.P.C. i.e. There is no allegation that on 12-10-1980, the Reader had not handed over the slip of paper specifying the next date. In fact, I don't find. Any factual ground in the pleadings that the petitioners were not aware of the said next date specified by the Reader on 12- 10-1980. Nothing, therefore, turns on the said first contention of the learned counsel.
6. In support of his second contention, learned counsel has relied upon the Judgments in the cases of "Mst. Ghulam Sakina and 6 others v. Karim Bakhsh and 7 others" (PLD 1970 Lahore 412), "Rahim Bux and another v. Gul Muhammad and 2 others" (PLD 1971 Lahore 746) and "Messrs. Ghulam -Farid Muhammad Latif and others v. The Central Bank of India, Limited, Lahore" (PLD 1954 Lahore 575).
The ratio of the said Judgments is that date of hearing implies a date on which some act for furtherance of the suit or the proceedings is to be taken. In the case of "Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another" (PLD 1975 Supreme Court 678), their Lordships quoted with approval the following extracts from a judgment in the case of "Sheikh Abdul Rehman v. Shib Lal Sahu" (AIR 1922 Patna 252) at page 698 and 699 of the report:-- "The word "hearing" has not been defined in the Code but it is obvious that it is used in different rules with a view to state the different purposes for which a date for hearing of the suit is fixed. Now in Order IX, rule. 1, read with Rule 3, it would appear that after the institution of the suit when the summons is issued upon the defendants calling upon them to appear upon a particular date and that date is the first hearing of the suit and if the parties fail to appear when the suit is called on for hearing on that date the plaintiff's suit is dismissed-for default various steps have to be taken by the parties in a suit in order that it may be ready for final hearing which means the examination of witnesses, the tendering of documents, and the hearing of arguments. At the intermediate stage in order to enable or compel the parties to take necessary steps in the prosecution of the case the Court may fix dates for some particular action to be taken. These dates are dates for hearing of that particular matter which is specified in the order. Of the Court. "
7. To my mind also summoning of the defendant is an act germane to the proceedings in the suit and the date for which the defendant is to be summoned and his presence is to be procured, is a date of hearing inasmuch as it is an important step in the suit. I am, therefore, not in agreement with the learned counsel that the said date on which the suit was dismissed for non-prosecution was not a date of hearing. .
8. There is yet another aspect of the case. Even if I were to agree with the learned counsel and to hold that on the said date, the suit was not called on for hearing and that the order passed by the learned Court dismissing the suit under Order IX rule 8, C.P.C. Was illegal or for that matter without jurisdiction, I am afraid, it would not have been possible for me to set aside the said order in this Civil Revision, arising out of the present suit. By now it is well-settled that a void order is a species of an illegal order and particularly when the remedies are available against the same then it cannot be ignored or set aside in collateral proceedings merely on the ground that it could not have been lawfully passed. In somewhat similar circumstances, the Supreme Court in the case of "Messrs Conforce Ltd. v. Syed A.I Shah etc." (PLD 1977 Supreme Court 599) observed as follows at page 601 of the report while answering the argument of the learned counsel that the ex parte order was void and without jurisdiction because the case had not been fixed for hearing on 1-12-1975.
"However, in view of the frequency with which gross negligence is sought to be condoned on the plea that the impugned order was void or without jurisdiction, we would observe that a void order or an order without jurisdiction is only a type of an illegal order passed by a Court and the fact that it has been passed and that it may, therefore, create rights cannot be altered by describing it as void or without jurisdiction. And, further, the expressions void orders and orders without jurisdiction are overworked expressions. No doubt they are relevant in some contexts but as suggested by Lord Reid in Anisminic Ltd. v. Foreign Compensation Commission and others (1) it would be better to use these expressions in the narrow and original sense of the, lack of competence of the Court or the Tribunal "to enter on the enquiry in question". Now in the present case, there is no dispute that the learned Civil Judge, who passed the impugned order had seisin of the case therefore, it was for him to decide whether the case was fixed for hearing or not on 1-12-1975. And, even if it is assumed that his decision was totally illegal, the Legislature has provided a remedy for challenging such orders".
9. Nothing has been brought on record as to what prevented the petitioners from availing remedy under Order IX rule 9, C.P.C. Or even if the argument of the learned counsel is taken at its face value, under section 15,1 C.P.C. For setting aside of the order Exh.D.5.
10. As a result of the above discussion, I do not found any force in this revision petition. It is accordingly dismissed leaving the parties to bear their own costs.
Q. M. H. /M. A. K./E-4/L