M. AFAQ MALI K vs Mst. IQBAL BEGUM Alias BALLAN
This matter concerns a petition for leave to appeal against a Lahore High Court judgment that dismissed a civil revision petition. The petitioner had filed a civil suit seeking a declaration that a registered deed of gift in favor of his wife was illegal and void. During the trial, after two witnesses were examined, the petitioner and his counsel failed to appear on the adjourned date, leading the trial court to dismiss the suit in default under Order IX, Rule 8 of the Code of Civil Procedure 1908. The petitioner's subsequent application for restoration was dismissed due to a lack of sufficient grounds, a decision upheld on appeal and revision. The petitioner argued that the court should have decided the case on merits rather than dismissing it in default. The Supreme Court held that the trial court's dismissal was legally sound and a proper exercise of discretion. The Court distinguished the cited precedents, noting they applied to the closure of evidence rather than non-appearance, and consequently refused the petition for leave to appeal.
- Is a trial court justified in dismissing a suit in default under Order IX Rule 8 of the Code of Civil Procedure 1908 when the plaintiff fails to appear on an adjourned date?
- Does the failure to produce evidence on a scheduled date mandate a decision on merits rather than a dismissal in default?
- Order IX Rule 8, Code of Civil Procedure 1908
ORDER
1. SHAFIUR RAHMAN, J.-- The petitioner seeks leave to appeal against the judgment of the Lahore High Court, dated 13-1-1980 whereby a civil revision petition filed by him was dismissed.
2. The petitioner filed a civil suit seeking declaration that the registered deed of a gift, dated 24-6- 1968 in favour of his wife, the respondent, was illegal and void for various reasons. The suit was contested and the issues were framed. Two witnesses of the petitioner were examined and the matter was adjourned to 27-6-1977. On that date the petitioner did not appear nor his counsel nor his witnesses. The suit was dismissed under Order IX, rule 8, C.P.C. On 6-7-1977 the petitioner applied for restoration of the suit. The application was dismissed as sufficient ground was not shown. This order was maintained in appeal and not interfered in revision by the High Court.
3. The learned counsel for the petitioner contended that as a direction has been given to the petitioner to produce evidence and there had been a failure on his part to produce it and as material was already available on the record the proper course would have been to decide the case on merits and not to dismiss it in default. He has relied on Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum PLD 1971 SC 434 and Muhammad Haleem v. H.H. Muhammad Naim and others, PLD 1969 SC 270.
4. We find that the course followed by the trial Court in dismissing the suit in default was not contrary to any provision of law. It had exercised a discretion in the matter. It was for the petitioner to have come forward with reasonable and sufficient grounds explaining his failure. As that was not done restoration of the suit was refused. The cases referred to and cited by the learned counsel for the petitioner have no application to the facts of the case as they relate to the closure of evidence on failure of the party to produce evidence. The petition has no merit and leave to appeal is, therefore, refused.