2010 S C M R 48
Civil Procedure Code (V of 1908)---
----S. 149-Deficiency in court-fee---Time fixed by Court---Appeal filed by petitioners was dismissed by Appellate Court on the ground that deficiency in court fee was not completed within time given by Court and Reader of the Court had no authority to extend time for deposit of court-fee-Validity-Petitioners had neither violated target date nor order of Appellate Court was flouted, which could not be complied with due to absence of Presiding Officer on one hand and direction of Reader on the other who mentioned that court fee was to be deposited on next date of hearing---No direction whatsoever was given by Reader that court fee was to be deposited with Duty Judge---If there had been some Duty Judge, the Reader himself would .have not given date and adjourned the case---General practice was that usually where Presiding Officer was on short leave for a day or two, no Duty Judge was appointed and in criminal cases for the purposes of remand, additional duties were assigned to some other Judicial Officer---Date on which court fee was deposited was a valid, tendering of court-fee, under the peculiar circumstances of the case---Nothing was available on record to support that Duty Judge was functioning on that day---Conduct of petitioners could not be declared contumacious nor they had acted with mala fide intention to deliberately flout orders of the Court---Supreme Court converted petition for leave to appeal into appeal and remanded the matter to Lower Appellate Court for decision of appeal afresh---Appeal was allowed.
............................
Date fixed by the reader of the Court could not be treated as "Date of hearing" of appeal.
2020 MLD 1765
..........................
2014 CLC 627
Provision of O.XVII, R.2, C.P.C. was applicable upon failure of party to appear on adjourned Date of hearing, no matter at whose instance the adjournment might have been, except the adjourned Date fixed by reader and not by the Court, in such circumstances provision of O.XVII, R.5, C.P.C. was applicable--
.........................
P L D 2013 High Court (AJ&K 27
(a) Civil Procedure Code (V of 1908)---
----O. IX, R.8---Dismissal of suit for non-appearance of plaintiff---Scope---Court could not dismiss suit when either plainitff's claim was wholly or partly admitted by defendant or when plaintifff's presence was not required---Dismissal of suit on a date not fixed for hearing would be a nullity in eye of law---Principles.
(b) Civil Procedure Code (V of 1908)---
----O. IX, R.8---Suit dismissed for non-prosecution---Application for restoration of---Validity---Record showed that relevant date had been fixed by Reader of court on a previous date, when Presiding Judge was on leave---Neither presence of plaintiff was required on relevant date nor same was a date of hearing---Suit was restored in circumstances.
.........................
2011 Y L R 1738
Civil Procedure Code (V of1908)--
----O.XVII, Rr. 2, 5 & O.IX, R.9---Limitation Act (IX of 1908), Arts. 168 & 181---Application for restoration of suit dismissed for non-prosecution---Dismissal of such application by Trial Court and appellate court for having been filed beyond 30 days prescribed under Art. 168 of Limitation Act, 1908---Plea that in absence of Presiding Officer of court, reader had fixed adjourned date of hearing without issuing signed slip specifying same, thus, order of dismissal of suit on such date not fixed by court itself was void and Art. 181 of Limitation Act, 1908 was applicable thereto---Validity---Word "adjourned" as used in O.XVII, R.2, C.P.C., would mean "adjourned" by Court---Reader had adjourned case in absence of Presiding Officer of court without handing over to plaintiff such signed slip in terms of O.XVII, R.5, C.P.C.---Such adjourned date was not a date of hearing within meanings of O.XVII, R.2, C.P.C.---Trial Court on adjourned date fixed by its Reader could fix another date for hearing---Order of dismissal of suit had been passed in utter disregard to mandatory provision of O.XVII, R.5, C.P.C., thus, same was a nullity and Art. 181 of Limitation Act, 1908 would apply thereto---High Court set aside impugned order and restored suit in circumstances.
.........................
2009 Y L R 228
Civil Procedure Code (V of 1908)---
----O.IX, R.8, O.XVII, Rr.4, 5 & S.115---Dismissal of application for restoration of suit dismissed for non-prosecution--Expression "called on for hearing" occurring in O. IX, R.8, C.P.C.---Connotation---Wearing' consists of taking of evidence, hearing of arguments or consideration of question relating to suit, which would enable the Court to finally come to an adjudication upon it and not consideration of interlocutory matters--Where the Presiding Officer was not holding the Court, in the absence of any material, it could not be said that the Reader handed over the parties, slip of paper specifying the other date fixed for proceedings, the `date' on which the case was adjourned by the Reader thus could not be termed as "date of hearing"---Trial Court, in circumstances, was not competent to dismiss the suit for non prosecution on the said date---High Court, in exercise of its suo motu power under S.115, C.P.C., set aside the order passed by the Trial Court dismissing the suit for non-prosecution---Suit shall be disposed of on merits in accordance with law---Principles
.........................
2006 C L C 321
Closing of evidence by Family Court---Presiding Officer of the Court being on leave on the date fixed for recording of evidence of petitioner, case was adjourned by Reader of the Court---Evidence of petitioner being not available, on the adjourned date of hearing, Judge Family Court closed evidence of petitioner after refusing petitioner to grant any further opportunity for producing evidence---Validity--Adjournment granted by the Reader of the Court being not at the instance of petitioner, it would have been more appropriate for Trial Court to have given one more opportunity to petitioner for production of his evidence, which could be for one or two days---Reader of the Court had no authority to fix date for recording of evidence in absence of the Presiding Officer, unless so authorized by any specific order of the Chief Justice---ht absence of any expressed authority, it would be disastrous to allow Readers to fix dates of hearing---Proceedings conducted by Reader of the Court, were declared as without lawful authority and of no legal effect and in consequence thereof, impugned order of Judge Family Court closing evidence of petitioner, was set aside, with direction to allow one or two opportunities to petitioner to produce evidence and finally decide case till the specified date by not granting unnecessary adjournments to petitioner.
.........................
2005 CLC 325
----O. VII, R.2 & O.IX, Rr.7, 13---Suit for recovery of amount---Ex parte decree, setting aside of---Case, on the Date s fixed for evidence of plaintiff, was adjourned on note of reader of the Court to the effect that "Presiding Officer of Trial Court was on leave on the said Date and case was adjourned to next Date of hearing" ---On adjourned Date of hearing ex parte decree was passed against defendant---Validity---Date of hearing which was adjourned by reader of the Court was not the "Date of hearing" and final action could not be taken against defendants without any notice to them on said Date
.........................
P L D 2004 Peshawar 38
Civil Procedure Code (V of 1908)---
----O. VIII, R. 10 & O. IX, R. 6---Passing ex parte decree on date which was not fixed for hearing---Presiding Officer of Court was not present on the date which was fixed for filing written statement by, defendant and date was adjourned on note of Reader of the Court---Presiding Officer of the Court was not available on adjourned date and case was again adjourned on the note of Reader and was posted for another date, but on the date so posted ex parte decree was passed against defendant---Date on which ex parte decree was passed against defendant, being not the date of hearing, no ex parte decree could be passed against defendant on the said date.
.........................
2003 C L C 1176
Civil Procedure Code (V of 1908)---
----O. XVII, R.5 & S.115---Date of hearing---Application for setting aside ex parte decree---Record showed 'that the case was fixed for 12-1-2000 on which date the Presiding Officer was on leave, thus the case was adjourned on the note of the Reader for 28-1-2000 on which date the Trial Court dismissed the application for setting aside ex parte proceedings which had been filed on 17-7-1999 on which date the ex parte proceedings had been initiated---Date of adjournment noted by the Reader and not by the Court itself, could not be called a "date of hearing" and proper course for the Trial Court, in circumstances, was to adjourn the date and then proceed further---Dismissal of application for setting aside the ex parte proceedings on 28-1-2000 was, therefore, not in accordance with law as the Courts below had failed to appreciate the law applicable to the case.
.........................
Adjourned date fled by Reader of the Court in absence of the Presiding Officer‑‑‑Validity‑‑‑Date fixed by the Reader of the Court could not be called as a "date of hearing".
2001 CLC 591
.........................
2001 MLD 890
Adjournment---Absence of Presiding Officer---reader of Court, duty of---Scope---Where the parties were handed over the slips of paper specifying the next Date , the same Date given by the reader might have become the Date fixed for proceeding with the suit or proceedings.
.........................
P L D 1998 Lahore 342
Civil Procedure Code (V of 1908)--
----0. XVII,R.5 & O.XLIII, R.1---Constitution of Pakistan (1973), Art. 199--Constitutional petition---Order to deposit process fee passed by Reader of Court---Dismissal of revision by revisional Court for non-deposit of process fee---Validity---Reader was not competent to pass any order requiring any party to pay process fee within certain period---In absence of Presiding officer, ministerial officer of Court could only fix next date of hearing and hand over duly signed slips of paper to parties specifying other date fixed for proceeding with the suit or proceedings in terms of O.XVII, R.5, C.P.C. he could not pass any other order particularly such order which could result in certain penal consequences---Court on adjourned date so fixed by ministerial officer, would be competent to conduct the same proceedings as scheduled on the date when Presiding Officer was absent or in his discretion might adjourn the case---Dismissal of revision petition on adjourned date for non-payment of process fee was illegal, for, Court had never passed any order requiring petitioner to pay process fee---Court was required to pass specific order requiring party to pay process fee within fixed time, in absence whereof, no penal action could be taken against defaulting party---Impugned orders of revisional Court culminating into dismissal of petitioner's revision was set aside being without lawful authority and of no legal effec
.........................
1993 M L D 1788
Civil Procedure Code (V of 1908)---
----OXVII, R. 3---Dismissal of suit for want of affirmative evidence--Validity--- Presiding Officer of Court being on leave on the date when evidence of plaintiff was to be recorded, Reader of Court adjourned case for recording evidence of plaintiff---Date fixed by Reader for recording of evidence could not legally be construed to be a date on which failure to produce evidence should be visited with the penalty of closure of plaintiff's evidence and dismissal of suit---Where power was given to do a certain thing in a certain way the thing must be done in that way and other methods of doing were necessarily forbidden---Provisions of OXVII, R. 3, Civil Procedure Code, 1908, could not be invoked on a date which was not fixed on the request of the defaulting party---Presiding officer being on leave on the date when evidence of plaintiff was to be recorded adjournment of case was not made on the request of plaintiff and as such, on the adjourned date no order could be passed for closing the evidence under provision of O.XVII R. 3, C.P.C: --Order of closure of plaintiffs evidence was thus not sustain,
.........................
1989 MLD 1981
Date on which appeal was dismissed in default, was not a Date for hearing of appeal, but was fixed by reader of Court in absence of Presiding Officer merely for suitable orders by Court--Order of Appellate. Court dismissing appeal in default was set aside by High Court and appeal was ordered to be re-admitted for decision on merits
.........................
1989 M L D 3431
Tenant's case for non-prosecution dismissed and his ejectment ordered--Tenant was absent on date fixed for cross-examination of landlord's evidence--Cross-examination of landlord's witnesses was closed and case was adjourned to another date for tiling affidavit of evidence of tenant--Counsel for tenant filed application for adjournment of case which was put off to some other date for same purpose--No step was taken for opening landlord's side as tenant and his counsel did not appear nor filed affidavit for evidence when tenant's side was closed and case was fixed for arguments to some other date when again neither tenant not his counsel was present--Judgment was announced and ejectment order passed against tenant--Application under Order IX, R.13, C.P.C. filed by tenant was dismissed-Averments made by tenant were sketchy, superficial and not inspiring confidence--Counsel for tenant was unable to point out whether after order of dismissal of case tenant had applied for certified copy of order or merely on alleged information from reader he remained silent for long and did not take care to ascertain correct position--Tenant was not vigilant to pursue matter and inquire about it from time to time from his counsel and his conduct had been negligent--Order of Rent Controller dismissing application of tenant under O.IX , R.13, C.P.C. not suffering from any ambiguity and non-entering in minute details it was not manifesting injustice--Appeal against order of Rent Controller was dismissed.
.........................
1985 PLC(CS) 843
Fixation of Date s for particular purpose-Competence of Presiding Officer and not that of reader -Case fixed by Presiding Officer for production of evidence -reader adjourning case to another Date giving a short Date without saying anything as to what was to be done on next Date -Party not bringing evidence on such Date and Presiding Officer closing case-Party, in circumstances, held, justified to presume that Presiding Officer may fix another Date for production of evidence-Impugned decision of Labour Court, in circumstances, set aside by Appellate Tribunal and case remanded for re-decision after opportunity of evidence to parties
.........................
1984 C L C 1491
Civil Procedure Code (V of 1908)----
‑‑O. XVII, rr. 4 & 5, O. IX, r. 8 & S. 115‑Parties and counsel present on date fixed for filing of written statement but Presiding Officer was on leave on such date‑Reader of Court adjourned suit to next date for "making of an appropriate order"‑‑Such adjournment made by Reader in presence of counsels of parties‑Neither petitioner nor his counsel present on such date as fixed by Reader though counsel for respondent present‑Court on such date dismissed suit under O. IX, r. 8, C. P. C.‑Contentions of petitioner for restoration of suit (1) that date fixed by Reader of Court was not date of hearing of suit, therefore, order by which suit was dismissed in default was void ab initio and without jurisdiction, (2) that since said order was a nullity in eye of law it was liable to be struck down even though petitioner's second application for restoration of suit was time‑barred, (3) that provisions of O. XVII, r. 5, C. P. C. were not attracted to case because Reader bad not issued slips of paper mentioning date which case was adjourned by him and even if said provisions were applicable, the parties were required to simply enter appearance on said date to have orders for future conduct of case, (4) that date of filing written statement was not a date of bearing and date fixed by Reader could not be treated as date of hearing as Reader had adjourned case to that date for "appropriate order" ‑ Petitioner in his application for restoration of suit not averred that slips were not given by Reader ‑ No evidence on record was available that such slips were not issued by Reader‑Held, order by which suit of petitioner was dismissed in default was not void ab initio or without jurisdiction‑Such order could only be set aside if petitioner had made application for restoration of suit showing sufficient cause of his absence on date fixed‑Rule 5, O. XVII, C. P. C. being applicable, all official acts are presumed to be done in regular manner ‑Presumption, therefore, could be drawn that Reader had acted in accordance with provisions of r. 5, 0. XVII, C. P. C. and had issued such slips‑Mere fact that in order made by Reader there was no mentioned of handing over of slips was of little avail to petitioner especially when r. 5, O. XV11, C. P. C. does not require ministerial officer to expressly state in his order that slips had been delivered‑Parties were bound under O. XVII, r. 5, C. P. C. to appear before Court on date to which case was adjourned by ministerial officer‑Such date was not date for appearance only but words "proceeding with suit" employed in O. XVII, r. 5, C. P. C. envisages the conduct of same proceedings on date fixed by its ministerial officer which were scheduled to be conducted by Court on date when Presiding Officer was absent, on leave, or otherwise‑Date to which case was adjourned under r. 5, O. XVII, C. P. C. would be for same purpose for which case was fixed by Presiding Officer for date on which he could not hold Court‑Date given by Reader, therefore, was also the date for filing of written statement and order made by Reader, probably inadvertently, that case would come up on that date for "appropriate order", could not override provision of law‑Order of adjournment therefore was not for appearance of parties or just a date of hearing but for filing of written statement‑
0 Comments