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Civil Petition for Special Leave to Appeal No. 329 of 1972, decided on 1st February 1973.
(On appeal from the judgment and order of the Lahore High Court, dated the 3rd February 19;2, in R. S. A. No. 749 of 1969).
O. IX, r. 9 read with S. ISI‑Suit‑Restoration‑Suit dismissed for default on date not fixed for hearing‑Suit, held, could not be dismissed in absentia and restoration rightly ordered by trial Judge.
Muhammad Akram Khawaja, Advocate Supreme Court instructed by Ejaz Ahmad Khan, Advocate‑on‑Record for Petitioner. ,
Nemo for Respondent.
Date of hearing : 1st February 1973.
The petition is barred by 137 days. Even otherwise, there is nothing in the merits of the case. Respondent, on the 25th March 1963, filed a suit for possession in respect of agricultural land measuring 23 kanals and 7 marlas, situated in the revenue estate of Boewala in District Gujrat, against the petitioner who 'has purchased the property by sale deed dated the 2Fth March 1962, in consideration of Rs. 6,500. The parties reached a compromise and their statements were recorded in the following terms ; by the trial Judge on the 2nd January 1964 :‑
"Decree be passed in favour of the plaintiff against payment of Rs.6,500. Time be granted for passing the money. The money shall be paid before the Court."
On this, the following order was passed by the learned trial Judge :‑
"The plaintiff shall pay the money on 30th January 1964, before the Court. The rest of the proceedings shall take place on that day. The ease to come upon that day."
It appears that respondent deposited the money in Court before the 30th January 1964. On 3Uth January 1964, the case was called. The respondent and his counsel were absent while the petitioner was present in person. The learned trial Judge dismissed the suit under Order 1X, rule 8, C. P. C.
The respondent made an application for setting aside the said order under Order IX, rule 9 and section 151, C. P. C. and sought for the restoration of the suit. This application was resisted by the petitioner. The parties led evidence. Mr. Akhtar Hussain, learned Administrative Civil Judge, Gujrat, on the 25th November 1964, restored the suit on the ground that 30th January 1964, was not the date of hearing and the suit could not be dismissed for this reason. He, later on, passed a decree for possession through pre‑emption. The petitioner filed an appeal which was accepted by Sh. Bashir Ahmad, Additional District Judge, Gujrat, on the 29th May 1965. The respondent challenged this order in second appeal in the Lahore High Court which was accepted by a learned Single Judge on the 3rd February 1972. The petitioner seeks permission to file an appeal against the said order.
After hearing the learned counsel for the petitioner, we are satisfied that the suit was rightly restored by the learned trial Judge. 30th January 1964 was not the date fixed for the hearing of the suit and therefore, the suit could not be dismissed in the absence of the respondent. The respondent had already deposited the amount in Court and satisfied the terms of the compromise There is no ground to interfere. The petition is dismissed.
Petition dismissed.
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