With the concurrence of the learned counsel for the parties the appeal is treated as an admitted case.
2. Appellant had filed a suit against the respondent. The respondent had put appearance therein through counsel and 25-6-2002 was fixed for filing of the written statement and reply of stay application. On the said date none appeared on behalf of the appellant. Counsel for the respondent was, however, prey ant who submitted written statement as well as reply to the stay application. The suit was dismissed by the trial Court for non-prosecution.
3. On 27-6-2002 an application for its restoration was moved, it was opposed by the respondent and was ultimately dismissed by the trial Court vide order dated 13-7-2002.
4. The aforesaid order of the Additional District Judge, Sahiwal (trial Court) is assailed in this F.A.O.
5. Learned counsel for the appellant argued that the learned trial Court failed to note that 25-6- 2002 was fixed for filing written statement and reply to stay application hence it was not a date of hearing and that cause for non-appearance of the appellant and his counsel was not properly appreciated.
6. The appeal was opposed by the learned counsel for the respondent who during his arguments fully supported the impugned order.
7. Arguments heard, appeal and its annexures perused.
8. It is not denied by the learned counsel for the respondent that the date on which the suit was dismissed for non --prosecution was for filing of the written statement and reply to stay application. A date on which no investigation of any matter germane to the progress of the suit is to be performed by the Court and which is only fixed for making an order of an administrative nature such as filing of written statement, replication or for altering the date etc., is not a date of hearing. Hearing includes investigation of a controversy, hearing of arguments, striking of issues or taking of evidence etc. And not hearing interlocutory matter.
9. Under Order 9, rule 8, C.P.C. Suit can be dismissed for non-appearance of the plaintiff on the date of hearing. Since 25-6-2002 was not a date of hearing, the appellant/plaintiff could not be penalized for his or his counsel absence on the said date.
10. The impugned order is, therefore, not sustainable, it is accordingly set aside. Appeal is accepted and the learned trial Court is directed to proceed with the case it accordance with law.