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Civil Petition for Special Leave to. Appeal No. 319 of 1972, decided on 17th November 1972.
(On appeal from the‑ order of the Lahore High Court at Lahore, dated the 23rd Juno 1961, in Civil Revision No. 151 of 1971).
Civil Procedure Code (V of 1908),
O. IX, r. 4‑Restoration of suit to file‑‑Counsel admitting to have been instructed to appear before Court on day fixed for haring but that he could not do so because of adjournment of case to another date‑‑‑Counsel not appear ing on adjourned date and admitting to have taken another power of attorney for moving restoration application long after date fixed for hearing and dismissal of suit‑High Court, held, rightly refused to interfere with order of dismissal of suit.
Khan Hamid Alt Khan Shirwani, Advocate Supreme Court instructed by S. Wajid Hussain, Advocate-on‑Record for Petitioner.
Nemo for Respondent.
Date of hearing t 17th November 1972.
This [petition is from the order of learned Single Judge of the Lahore High Court refusing to interfere with the order of restoration of the respondent's suit dismissed on. account of the absence of the plaintiff' (respondent) on the 24th July 1968. The, learned Single Judge considered the statement of Ch. Sanaul Haq, Advocate, examined as plaintiff witness No. 4 to the effect that he had been instructed to appear on the 24th July 1968, by the plaintiff ‑respondent, but failed to appear due to his pre‑occupation before another Court.
Khan Hamid Ali Khan Shirwani appearing on behalf of the petitioner has contended that the aforesaid Advocate, in fact, put in his power of attorney long after the aforesaid date of dismissal of the plaintiff's suit for default. On reference to the statement of the said Advocate it does not appear that his statement that he was instructed to appear on the 24th July 1968, but on that day a he was busy in another Court, he could not appear in the case when called for hearing, has been challenged. On the contrary, he reiterated in the cross‑examination that he was instructed to appear on the 24th June 1968, but as the Judge concerned was o leave, the case was adjourned to the 24th July 1968. The witness stated that he took another power of attorney from the respondent on the 29th August 1968, far the purpose of moving the applica tion for restoration.
In these circumstances, we think‑that the learned Single Judge has ‑exercised his discretion on a reasonable ground and no fault can be found with this order. The petition is, accordingly, dismissed.
Petition dismissed.
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