COLLECTOR OF GUJRAT Versus ABDUL SHAKOOR and 2 others

It will not be necessary to state the pleaded facts of this case. Suffice it to say that a suit filed by the respondents on 15‑10‑1989 was I contested by the petitioners. This suit was dismissed for non‑prosecution on 31‑1‑1996. On 24‑4‑1996 an application was filed by the respondents for restoration of the suit. This application was resisted by the petitioners and was dismissed by the learned trial Court on 10‑7‑2001. A first appeal filed by the respondents was allowed by a learned ADJ, Gujrat, on 14‑2‑2002 who restored their suit.

2. Miss Alia Neelam, Advocate, assisting the learned A.A.‑G. contends that a wholly false application was filed which was found to be so by a learned trial Court who dismissed the same. However, the learned ADJ has restored the suit on no ground whatsoever. According to the learned counsel, it stands conceded even by the learned ADJ that there was no sufficient cause for restoration of suit. Learned counsel for the respondents, on the other hand, has tried to support the impugned order of the learned ADJ.

3. I have gone through the copies of the records, with the assistance of the learned counsel for the parties and learned A.A.‑G. Now as stated by me above, the suit as dismissed on 31‑1‑1996 while the application under Order IX, rule 8, C.P.C. was filed on 24‑4‑1996. Now in this application, it was stated that the suit was pending in the Court of Mr. Muhammad Azam Saroya, Civil Judge, Gujrat. The said learned Judge was transferred and the Court was abolished and the cases were distributed. The respondents had been checking up with the office of the Court and they were informed that wherever the suit file goes they will be sent a notice but such a notice was not received. Then, it was stated as follows:‑‑

Now the plea taken in reply was that the learned counsel for the respondents/plaintiffs appeared on 28‑1‑1996 when the evidence of the petitioners was recorded and the case was adjourned to 30‑1‑1996 for recording rebuttal evidence of the respondents. On 30‑1‑1996 the learned counsel for the respondents was present but requested for an adjournment as he was to attend the funeral of a brother‑lawyers. The case was adjourned to 31‑1‑1996 as last opportunity. It was on this date that none appeared for the respondents while the learned counsel for the petitioners was present and the case was dismissed for non‑prosecution. This contention was stood borne out from the record and the learned trial Court taking note of the same did not believe the contention of the respondents.

4. Now following is the observation of the learned ADJ while dealing with Issue No.2 pertaining to sufficient cause for restoration of the suit:‑‑

"I am in agreement with the learned counsel for the petitioner that the technicalities should not be involved while deciding the matter and opportunity should be granted to both of the parties to plead and to defend their respective contention without going into the technicalities, therefore, I am of the view that opportunity should be granted to the appellant/petitioner in this regard and this is a sufficient reason for the restoration of the said suit."

5. To my mind the learned ADJ has proceeded in the matter as if Order IX, rule 8, C.P.C. and consequently Order IX, rule 9, C.P.C. have ceased to be part of the statute book. However, this is not so. Under Order, IX, rule 8 C.P.C., the Court may dismiss a suit where the defendant is present and the plaintiff is absent when the case is called out for hearing. The suit was fixed for recording evidence in rebuttal of the respondents and it was, of course, a date of hearing. The respondents and learned counsel for the respondents were absent while the learned counsel for the petitioners was present. Thus, the suit was dismissed in accordance with the said provisions. Now Order IX, Rule 9, C.P.C. confers authority upon a Court that upon satisfaction that there was sufficient cause for non‑appearance of the plaintiff when the suit was called on for hearing it shall make an order setting aside the dismissal. Now as would be evidence from a comparison of the judgment of the learned trial Court and that of the learned ADJ, whereas the trial Court findings that the respondents had filed a false application and the record shows otherwise, the learned ADJ has proceeded to lay down a rule which is not at all warranted by law. No doubt the technicalities are to be avoided and justice is to be done but this is to he accomplished within the four corners of law and not otherwise. To my mind, the learned ADJ has acted without lawful authority in restoring the suit when admittedly no cause, sufficient or otherwise; for nun‑appearance of the respondents on the date fixed for hearing had been made out and the one stated in the application turned out to be false.

6. This civil revision is accordingly allowed the impugned order .dated 14‑2‑2002 of the learned ADJ, Gujrat, is set aside while the one passed by the learned trial Court on 10‑7‑2001 dismissing the application of the respondents under Order IX Rule 8; C.P.C. is restored. No orders as to costs.

H.B.T./C-12/L: Revision allowed.