Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
P L D 1981
Lahore 339
Before Muhammad Hassan Sindher, J
ALTAF HUSSAIN AND ANOTHER-Petitioners
versus
GHULAM MUHAMMAD-Respondent
Civil Revision No. 454 of 1979, decided on 6th December 1980.
Civil Procedure Code (V of 1908)--
O. IX, r. 8-Dismissal of suit for default of appearance-Dismissal of suit for default during early hours of day.-Not proper-Litigant, held, should be awaited reasonably for appearance so as to ensure decision of cases on merits for which purpose alone Courts exist- Courts not to act in fashion of disciplinary institutions and lay trap for unwary litigants-Suit dismissed for non-appearance of petitioners within half an hour of start of Court on date not fixed for bearing but fixed for submission of amended written statement by respondent Order of dismissal, held, without jurisdiction and nullity in law.
Ghulam Sakeena v. Karim Bakhsh P L D 1970 Lah. 412 and Rahim BakhsJ v. Gul Mohammed and others P L D 1971 Lah. 746 ref.
Malik Mohammed Jaffar for Petitioners.
Irshad Hassan Khan for Respondent.
Date of bearing : 6th December, 1980.
It will be a sheer formality to recount in detail the facts leading to this revisional application to challenge concurring orders of two Courts below rejecting the application of the petitioners for restoration of suit dismissed in default under Order IX, rule 8, Civil Procedure Code. Suffice it to say that' the suit was dismissed for non-appearance of the petitioners within half an hour of the start of Court work on the date fixed for submission of amended written statement by the respondents. It was rightly contended on the side of the petitioners that the date for filing of written statement or amended written statement or a replication was not the date of hearing within the meaning of Order TX, rule 8, Civil Procedure Code. Order dismissing the suit was without jurisdiction and a nullity in law. Learned Civil Judge was obliged to restore the suit for hearing whether or not the petitioners had allegedly failed to establish "sufficient cause" for their non-appearance. This argument which was not controverted on the side of the respondent though not conceded explicitly is borne out by a couple of authorities already noted in the admitting order viz. Ghulam Sakeena v. Karim Bakhsh (P L D 1970 Lah. 413), Rahim Bakhsh v. Gul Muhammad and others (P L-D 1971 Lah. 746 ).
Additionally, it was also improper on the of learned Civil Judge to have thrown out the suit in default during early hours of the day. Litigant should be awaited reasonably for appearance so as to ensure decisions of cases on merits for which purpose alone the Courts exist. Courts are not to act in the fashion of disciplinary institutions and lay traps for unwary litigants. Order dismissing the application for restoration of the suit amounted to non-exercise of jurisdiction by the Courts below vested in them in law and the case was covered by clause (b) of section 115, Civil Procedure Code.2. Petition is accepted. Order of learned Civil Judge dismissing the application under Order IX, rule 8, Civil Procedure Code as well as the order on appeal affirming that of learned Civil Judge are set aside. The case is remitted to learned Civil Judge, Pindi C3heb, District Attock for disposal in accordance with law. Parties shall be issued notices for appearance for a date during second week of January, 1981.
M. Y. M. Petition. accepted.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer