Law: Civil Procedure Code (V of 1908)

Section: O.IX,r.3

Civil Procedure Cede (V of 1908)------ ----O. IX, r. 3-"Hearing"-Mean­ing of-No investigation of matter germane to suit on date of default-Dismissal of suit without jurisdiction. The expression hearing' is defined in Wharton's Law Lexicon as "investigation of a controversy." Where no investigation of any matter germane to the suit fell to be performed by the trial Court, and the only order which it could possibly have made was an order of an administrative nature. Held, that the order dismissing the suit was without jurisdiction since there was no hearing of the suit on the date on which default of appearance was made. A I R 1936 Lah. 280 ; 57 Ind. Cas. 748 relied on. JUDGMENT CORNELIUS, J.-The facts of the case out of which this revision petition arises may be briefly stated. On the 18th November 1943, Mst. Barkat Bibi and two other plaintiffs filed a suit against five persons for possession of land in the Court of the Senior Subordinate Judge, Gujranwala. Evidence having been recorded and final arguments heard, the learned Subordinate judge in a lengthy order framed two additional issues on the 4th October 1945, and fixed a date for evidence of the parties in relation to the additional issues. A revision petition was filed in this Court against the order of the 4th October 1945, and the file of the case was requisitioned by this Court. In consequence, the trial Court could not proceed with the case and on the 20th November 1945 there is an order stating that the file of the case was in the High Court and the case could not proceed. Another date was fixed and in consequence of the file not having been received, this date was extended from time to time. On the 2nd May 1946, in the presence of counsel for the parties an order was made as follows :- " The file has not yet been received back from the High Court. Let it be awaited. Let this case be put up on the 29th May 1946." The last two sentences in the above quotation are a free translation of the following words in Urdu :- "Intizar hokar 29-5-1946 ko pesh howe." On the 29th May the file had been received, and when the case was called, counsel for the defendants appeared but neither the plaintiffs' counsel nor…

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