Date for replication not hearing date

1984 C L C 1491

(a) 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‑[Gul Muhammad and another v. Barkhat Ali and others P L D 1982 Azad J & K 54 dissented from].

Syed Qasim Shah v. Deputy Commissioner Kachhi District and another P L D 1976 Quetta 42 distinguished.

Nowsheri Khan v. Said Ahmad Shah 1983 S C M R 1092 and Muhammad Din v. Zabardast Khan and another P L D 1972 Azad J & K 7 fol.

Shorter's Oxford English Dictionary, 1936 Edn. ref.

Gul Muhammad and another v. Barkat Ali and others P L D 1982 Azad J & K 54 dissented from.

(b) Civil Procedure Code (V of 1908)‑

‑‑O. IX, rr. 8 & 10‑"Date fixed for filing of replication" and "date for filing "written statement"‑Difference‑Date for filing of written statement is a date of hearing and is a material date inasmuch as if defendant fails to put in Written statement on that date suit can be decreed in terms of provisions of O. IX, r. 10, C. P. C.‑Plaintiff would face any adverse consequence if he absents himself from Court on that date‑Date fixed for submission of replication is not date of hearing‑Such date, how far different from date of presentation of written .statement, view expressed in Muhammad Siddiq v. Qaim Ali in 1980 C L C 1261 reiterated.

Muhammad Din v. Zabardast Khan and another P L D 1972 Azad J&K7fol.

Muhammad Siddque v. Qaim Ali 1980 C L C 1261 affirmed.

(c) Civil Procedure Code (V of 1908)‑

‑‑O. VIII, r. 1, O. IX, rr. 9 & 13, Ss. 151 & 115‑Limitation Act (IX of 1908), Art ' 63‑Dismissal of suit‑Application for restoration of suit dismissed in default‑No restoration application for dismissal of application for restoration of suit filed‑Second application for restoration of suit, if time‑barred, could not be entertained and rightly dismissed on ground of limitation‑Plea of petitioner that it was due to his illness that he could not appear before Court on date when suit was dismissed for want of prosecution not accepted by Courts below‑Such finding of fact arrived at by Courts below proper and nothing pointed out by petitioner to enable High Court to disturb same‑High Court declined to interfere in finding of fact by courts below in revision.

Sh. Hakim Ali for Petitioner.

Ch. Abdul Nabi for Respondent No. 1.

Respondent No. 2 : Ex parte.

Aejaz Ahmad Ansari, Mian Allah Nawaz and Muhammad Mian Qureshi as Amicus Curiae.

Date of hearing : 6th an 7th December, 1983

1984 C L C 1491

[Lahore]

Before Muhammad Ilyas, J

ZIA‑UL‑HASSAN HASHMI‑Petitioner

versus

FAIZ AHMAD AND ANOTHER‑Respondents

Civil Revision No. 28 of 1980/BWP, decided on 7th December, 1983

JUDGMENT

The facts giving rise to this civil revision are that the petitioner, Ziaul Hasan Hashmi. had filed a suit against the respondents, Faiz Ahmad and another. The suit was fixed for 25th July, 1978 for filing of written state­ment by the respondents (defendants). On the said date, the parties and their learned counsel were present but the Civil Judge, who was seized of the suit, was on leave. His Reader therefore, adjourned the suit to Ist October, 1978 for the making of an appropriate order (monasab hukam). This order was made by the Reader in the presence of the parties' counsel. On 1st October, 1978, neither the petitioner (plaintiff) nor his counsel was; present. Learned counsel for the respondents (defendants) was, however, in attendance. The learned Civil Judge, therefore, dismissed the suit under Order IX, rule 8 of the Code of Civil Procedure. The petitioner filed an application on 5th October, 1978 for restoration of the suit but that too was dismissed in default on 7th October, 1978. Then, on 5th December, 1978, he made another application for restoration of the suit. It was pleaded by the petitioner that he could not attend the Court on 1st October, 1978 due to illness. His plea was refuted by the respondents. It was also urged by them that the application was time‑barred. On this, the learned Civil Judge framed the following issues :‑,

(1) Whether the petitioner has sufficient ground for the restoration of his suit ? mot,

(2) Whether the petitioner's application is time‑barred ?

After recording the parties evidence, the learned Civil Judge decided both the issues against the petitioner and dismissed the application. The petitioner file an appeal before the District Judge which too had met the same fate. Hence this civil revision.

2. It was argued by learned counsel for the petitioner that 1st October 1978 was not the date of hearing of the suit and, therefore, the order by which the suit was dismissed in default was void ab initio and without jurisdiction. It was also submitted by him that since the said order was a nullity in the eye of law it was liable to be struck down even though the petitioner's second application for restoration of the suit was time‑barred. The view taken by the learned District Judge, who had dismissed the petitioner's appeal, was that "after the amendments in the Code of Civil Procedure if the Presiding Officer is on leave then the next date is to be for the same consideration for which the previous date was on which the Presiding Officer was on leave and so it cannot be said that the date, i. e. Ist October, 1978. was not the date of hearing.". In this connection, it was submitted by learned counsel for the petitioner that the amended provisions of the said Code, namely, Order XVII, rule 5, were not attracted to the present case because the Reader did not issue slips of paper mention­ing the date, that is, Ist October, 1978, to which the case had been adjourned by him. For this proposition he placed reliance on Syed Qasim Shah v. Deputy Commissioner, Kachhi District and another (P L D 1976 Quetta 42). It was also maintained by him that even if the said provisions were applicable, the parties were required to simply enter appearance on the said date to have orders for future conduct of the case. In addition, it was argued by learned counsel for the petitioner that the date for filing of the written statement is not a date of hearing. In this regard, he invited my attention to Gul Muhammad and another v. Barkat and others (P L D 1982 Azad J & K 54). Another point canvassed by him was that even if, according to law, 1st October, 1978 was the date of hearing it could not be treated as such because the Reader had adjourned the case to the said date for appropriate order.

3. The reply of learned counsel for respondent No. 1, was that the date given by the Reader was the date of hearing of the suit and, therefore, the learned Civil Judge was justified in dismissing the suit in default for non‑appearance of the petitioner and his counsel on the said date.

4. In this case, Mr. Aejaz Ahmad Ansari, Advocate ; Mian Allah Nawaz, Advocate and Mr. Muhammad Mian Qureshi, Advocate, appeared as amicus curiae to spell out. the true import of newly‑added provisions of Order XVII, rule 5 of the Code of Civil Procedure. They rendered valuable assistance but, with thanks, declined to get any fee. I am grateful to all of them.

5. It was submitted by Mr. Aejaz Ahmad Ansari, Advocate, that rule 5 of Order XVII should be read alongwith rule 4 thereof to find out the real intention of the Legislature. These two rules, which were inserted by the Law Reforms Ordinance, 1972, read as under :‑

"4. Appearance of parties on the day next after holiday.‑Where a suit or proceeding is set down for a day which is holiday, the parties thereto shall appear in the Court on the day next following that day, or, when two or more successive days are holidays, on the day next following the last of such successive days, and the Court may then either proceed with the suit on such day, or fixed some other day thereafter.

5. Appearance of parties on the day when the Presiding Officer is absent.‑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 proceeding 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 authorised in that behalf shall hand over to the parties slips of paper specifying the other date fixed for proceeding with the suit or proceeding and signed by him."

It was pointed out by Mr. Ansari that whereas according to rule 4 it was discretionary with the Court to "proceed with that suit" on the day following a holiday or "fix some other day thereafter", the Court is bound to proceed with the suit on the date which is fixed by the Reader under rule 5 in the absence of the Presiding Officer. According to him, by using the word '°proceed with the suit in rule 4 the framers of the law intended to convey that the Court could on the day following a holiday conduct the same proceedings for which the suit had been fixed for the day which is the holiday and that similar meaning will have to be assigned to the words "proceeding with the suit" used in rule 5. The argument of Mr. Ansari, therefore, was that since the suit between the parties was fixed for 25th September, 1978, for filing of the written statement it will be deemed to have come up before the learned Civil Judge on Ist October, 1978 for the same purpose.

Mian Allah Nawaz, Advocate, shared the view expressed by Mr. Ansari and cited Nowsheri Khan v. Said Ahmad Shah (1983SCMR1092) in support thereof.

7. Mr. Muhammad Mian Qureshi, Advocate, however, endorsed the contention raised by learned counsel for the petitioner and submitted that the date fixed by the Reader was merely for the appearance of the parties and not for the filing of written statement.

8. As regards the plea of learned counsel for the petitioner that slips of paper specifying 1st October, 1978 as the next date in the suit were not issued by the Reader and therefore, the provisions of Order XVII, rule 5, of the Code of Civil Procedure could not be invoked by learned District Judge, I will like to point out that in the application for restoration of the suit it, was not averred by the petitioner that the slips were not given by the Reader to his counsel. There is also no evidence in this behalf. Learned counsel for the petitioner, who appeared before the Reader, is not Sh. Hakam Ali, Advocate, who is representing him before this Court. The) instant case is, therefore, distinguishable from the case of Syed Qasim Shah, cited by learned counsel for the petitioner, inasmuch as in the cited case it was pleaded in the application for restoration of the suit that the slips were not handed over by the Reader. All official acts are presumed to be done in regular manner. A presumption can, therefore, safely be drawn that the Reader bad acted in accordance with the provisions of rule 5 and has issued the slips. As indicated above, there is nothing on the record to rebut that presumption. The mere fact that in the order made by the Reader there is no mention of the handing over of the slips is of little avail to the petitioner especially when rule 5 does not require the ministerial officer to expressly state in his order that the slips have been delivered. I am, therefore, unable to agree with learned counsel for the petitioner that the Reader had not issued the required slips and, therefore, the provisions of rule 5 are not applicable to the case m hand.

9. Now I proceed to examine whether the date given by the Reader was for filing of the written statement or for the appearance of the parties. We all know that before rules 4 and .5 were inserted in Order XVII of the Code of Civil Procedure a lot of delay used to occur in the disposal of suits due to the sudden declaration of holidays and the unexpected absence of the Presiding Officers by reason of illness or any other cause. The parties interested in prolonging the litigation used to absent themselves on the dates following such holidays or on the dates fixed by the ministerial staff, as the case may be, and also evaded service of notices issued to secure their attendance on the dates fixed thereafter. Even when the Court succeeded in getting them back, they used to ask for adjournments to catch with the proceedings for which the cases were fixed before the Presiding Officer had lost touch with the cases due to the aforementioned developments. It was with a view to getting over such difficulties that the provisions of rules 4 and 5 were added in Order XVII of the Code of Civil Procedure. Rule 4 obliges the parties to appear before the Court on the date following an unexpected holiday. Similarly, according to rule 5, they are bound to appear before the Court on the date to which the case is adjourned by a ministerial officer in the event of the sudden absence of the Presiding Officer. There is nothing in rules 4 and 5 to suggest that the dates on which the parties are required to re‑appear in pursuance of the said provisions would be the dates for their appearance only. In rule 4 the words "proceed with) the suit" have been used while in rule 5 the words "proceeding with the suit" have been employed. According to the Shorter Oxford English Dictionary (1936 Edition) the word "proceed" means as follows :‑

"To go, move or travel forward, to make one's way onward .... To go on with an action With stress on progress or continuance of action : a. To go on with or continue what one. has begun ; to advance from the point already reached ; In emphatic sense To make progress, get on ; ... To go on to a certain point ...To go or come forth "

In the context of the proceedings in a civil suit, the word "proceed" would mean the taking of steps for further progress of the suit. In view of the words "proceed with the suit on such day, or fix some other day thereafter" occurring in rule 4, a discretion has been given to the Court to take, on the day immediately following a holiday, the same action which was required to be taken on the day which is the holiday or adjourn the case to any other day. No such discretion is, however, available to the Court under rule 5 inasmuch as it envisages the conduct of same proceedings on the date fixed by its ministerial officer which were scheduled to be conducted by the Court on the date when the Presiding Officer was absent on leave or otherwise in other words, the date to which the case is adjourned under rule 5 will be for the same purpose for which the case was fixed by the Presiding Officer for the date on which he could not hold Court. In taking this view, I am fortified by the following observations of the. Supreme Court in the afore­mentioned case of Nowsheri Khan :‑

"The Reader of the Court before the amendment in the Civil Procedure Code, referred to above, was not authorised to fix a date for proceed­ing 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 become possible."

In the instant case, the date in question, that is, Ist October, 1978 was also fixed by the Reader of the Court under rule 5. Thus, it will be deemed to be for the same purpose for which the immediately preceding date, namely, 25th September, 1978 was fixed by the Presiding Officer. As stated above, the Presiding Officer had fixed 25th September, 1978 for the filing of written statement. I, therefore, hold that the date given by his Reader, namely, 1st, October, 1978 was also the date for the filing of written statement and not for the appearance of the parties.'

10. This brings me to the plea of learned counsel for the petitioner that the date fixed for submission of the written statement is not the date of hearing. The case of Gul Muhammad and another, relied upon by him, was decided by a Single Bench of the High Court of Azad Jammu and Kashmir. With utmost respect for the learned Single Judge, I am constrained to remark that he did not record a clear‑cut finding on the point in issue, I say so in view of his following observations to which reference was also made by learned counsel for the petitioner :‑

"The date for appearance of the defendant, in order to present written statement, is not deemed as a date of hearing of the suit. One of the liberal views is that even the date fixed for presentation of written statement is also, the date for the hearing of the suit and, as such, Court was in a position to strike out the issues."

Earlier, it was ruled by a Full Bench of the High Court of Azad Jammu and Kashmir in Muhammad Din v. Zabardast Khan and another (PLD 1972AzadJ&K7) that the date fixed for presentation of written statement is the date of hearing. In Muhammad Din's case the suit was dismissed in default on the date fixed for the filing of written statement. Argument raised before the Full Bench was that the said date was not the date of hearing but this contention was repelled as follows :‑

“ -----the question that remains to be determined is as to whether a date fixed for the filing of written statement is or is not a date of hearing within the meaning of the relevant provisions of this Code. The only ruling cited before »s and, in fact, the only one which we were ourselves able to trace and which is directly in point is P L D "` 1966 Azad J & K 10. In this case the written statement had to be presented on 27th June, 1964. It was not filed but the suit was dismissed because the plaintiff was absent. The Division Bench dismissing the appeal, held :‑

Hearing is not only when evidence has to be recorded by the Court but also when the Court applies its mind to the relevant claims of the parties. 27th June, 1964 was the date fixed for filing of the written statements of the defendants. When written statements are filed the Court records the statements of the parties and strikes issues. The recording of the statements of the parties or the striking of the issues amounts to hearing because the Court at this stage applies its mind to the relevant claims of the parties. Disagreeing with the learned counsel for the appellant we hold that the provisions of Order IX, rule 8, C. P. C. apply to the facts of the present case.'

It is true that the plaintiff's presence was immaterial so far as the presentation of the written statement was concerned but all the same it cannot be said that it was not a date of hearing. A perusal of the relevant provision of the Civil Procedure Code would show that it is no requirement of law that on presentation of the written statement the Court must necessarily adjourn the case for examination of the parties if necessary and the settlement of issues. On the other hand the Code has expressly empowered the Court to proceed with the recording of such statements and the statement of necessary issues on the same date. The provisions are reproduced below : ‑

`Order X, rule 2.‑At the first hearing of the suit, or at any subsequent bearing, any party appearing in person or present in Court, or any person able to answer any material questions relating to the suit by whom such party or his pleader is accompanied may be examined orally by the Court ; and the Court may, if it thinks fit, put in the course of such examination questions suggested by either party.'

Order XIV, rule 1, sub‑rule (S) is reproduced below :‑

(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.'

It was contended that as written statements were not presented the Court could not proceed with the examination of the parties and settle­ment of issues and as such the plaintiff should not suffer for his absence. In our view it should make no difference because if a case is fixed expressly for written statements it amounts to a date of hearing not only because the Court hears the defendants for the first time as to what he has to say against the claim brought against him by his opposite‑party, but also because the Court is free to proceed immediately with their examinations and the settlement of issues. It is important to note that Order IX, rule 8 as well as Order XVII, rule 2 has nothing to do with what proceedings actually take place on the date of dismissal but for what proceedings it had been fixed for that date. If d case is fixed for something which could be termed as hearing then the plaintiff's absence is sufficient for its dismissal but on the other hand if it is not fixed for such hearing, the plaintiff may well claim that he cannot be penalised simply because the Court could have proceeded to hear it within the mean­ing of the word.

--- ---- ---- ----

Under these circumstances we are of the opinion that the date of dismissal of the suit in question was the date of hearing within the meaning of Order XV(I, rule 2 read with Order IX, rule 8 of the C. P. C. The contention of the learned counsel for the petitioner is, therefore, rejected."

(In the report, the underlined*[Here in italics] portion appears in italics).

It seems that the case of Muhammad Din was not brought to the notice of the learned Single Judge when he decided the case of Gul Muhammad and another. Be that as it may, the view expressed by the learned Single Judge cannot be followed in preference to the law declared by the learned Full Bench. It was conceded by learned counsel for the petitioner that the date for framing of issues is the date of hearing. We are aware of the well established practice that when a suit is registered by a Court, other than Court of Small Causes, summons for settlement of issues is issued for a specified date and on such date the defendant is required to file written statement. Issues can be drawn up immediately on submission of the written statement. The Code of Civil Procedure does not contemplate the fixation of a separate date Mt framing of issues. The date for filing of the written statement is a material date inasmuch as if the defendant fails to put in written statement on that date, the suit can be decreed in terms of the provisions of Order IX, rule 10, of the Code of Civil Procedure. It is, therefore, not possible to say that the plaintiff would not face any adverse consequence if he absents himself from the Court on that date. The date fixed for submission of replication, no doubt, is not the date of hearing. How such a date is different from the date for the presentation of written statement was explained by me in paragraph 9 of my judgment in Muhammad Siddique v. Qaim Ali (1980 C L C 1261). I therefore, with respect, follow the dictum in the case of Muhammad Din and hold that the date fixed for filing of the written statement is a date of hearing of the suit.

11. What is now left to be considered is the submission of learned counsel for the petitioner that since the Reader of the learned Civil Judge had adjourned the case to 1st October, 1978 for appropriate order, the said date could not be treated as a date of its hearing. It has already been found that according to the relevant provisions of law, namely, Order XVII, rule 5, of the Code of Civil Procedure, the date fixed by the Reader was for the filing of written statement. The order made by the Reader, probably inadvertently, that the case would come up on the above date for appropriate order could not override the said provisions of law. Therefore, not with standing the fact that the Reader had adjourned the suit to 1st October, 19" 1 for the making of an appropriate order by the Presiding Officer, the said date would be deemed to be the date for filing of written statement an thus the date of hearing, If a contrary view is taken it will amount to clothing the ministerial staff with an authority to defeat the said provisions, of law by making orders like the one involved in this case.

12. The upshot of the above discussion is that the order by which the suit of the petitioner was dismissed in default is not void ab initio without jurisdiction. The said order could be set aside by the learned Civil Judge if the petitioner had made an application for restoration of the suit/ and had shown sufficient cause for his absence on the Ist October, 1978.1 According to Article 163 of the First Schedule to the Limitation Act, 190 such application should have been filed by him within 30 days of the dismissal of the suit. His first application in this behalf was in time buy that was dismissed in default and he did not ask for its restoration. The second application made by him for restoration of the suit was time‑barred. It could, therefore, not be entertained and was rightly dismissed on the/ ground of limitation. The plea raised by the petitioner was that it was dud to his illness that he could not appear before the Court on the date when the suit was dismissed for want of prosecution. His plea was, however, no accepted by the two Courts below. Their finding in this regard is on question of fact. Nothing has been pointed out by learned counsel for the petitioner to enable me to disturb that finding. It is, therefore, not possible for me to take a contrary view in regard to the illness of the petitioner.

13. In conclusion, this petition fails. It is dismissed with no order as to costs.

M.Z.M Petition dismissed