GHULAM MUHAMMAD vs ALTAF HUSSAIN Andanother

ORDER

1. NASIM HASAN SHAD, J.-This petition for leave to appeal is directed against the judgment dated 6- 12-1980 passed by a learned Single Judge of the Lahore High Court, whereby he accepted the revision petition of the respondents and set aside the orders of the Courts below.

2. The relevant facts are that the petitioner was defendant in the suit for pre-emption pending in the Court of the Civil Judge, Pindigheb. The suit was fixed for filing of the amended written statement by the defendant (petitioner herein). On the said date, neither the plaintiff (respondents herein) nor their counsel was present. The case was called and dismissed in default under Order IX, rule 8, C. P.

3. C. In the early hours of the day. The respondents filed an appeal before the learned District Judge which was dismissed on 27-3-1979. They then moved the High Court in revisional jurisdiction.

4. The learned Judge in the High Court accepted the revision petition on two-fold grounds; firstly, that the date on which the suit was dismissed was merely for filing of the written statement and was, therefore, not the date of hearing within the meaning of Order IX, rule 8, C. P. C. Con--sequently, the suit could not be dismissed in default on the said date and secondly, the suit had been dismissed in default during the early hours of the day, although according to the provisions of the High Court Rules and Orders the suit could not be dismissed in the early hours of the day, it should have been called again towards the end of the day and such an action could be taken only if the petitioner had not appeared at that time.

5. Mr. Bashir Ahmad Ansari, learned counsel for the petitioner, challenging the order of tae learned Judge in the High Court has criticized his finding that the date on which the case was dismissed in default was not the date of hearing of the case within the meaning of Order IX, rule 8, C. P. C. And secondly, that the point that the case was dismissed in default in the early hours of the day was not agitated before the Courts below.

6. We do not think it necessary to give any considered finding so far as the first contention is concerned because we are satisfied that the case could be restored on account of the second ground, namely, that it should not dismissed in the early hours of the day. The fact that the case was dismissed in the early hours of the day is established from the statement of the defendant Ghulam Muhammad himself and this Court has held in Messrs M. C. Kadlr & Co. v. Abdul Latif (PLD1974SC174), that an order passed by the High Court restoring a suit, an appeal or an application dismissed in default does no ordinarily call for interference by the Supreme Court.

7. We feel that there is no ground for interference with the normal practice of this Court in the facts and circumstances of this case. This petition must, therefore, fail and is, accordingly, dismissed hereby.