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Civil Petition for Special Leave to Appeal No. 990 of 1976, decided on 16th March 1980.
--- Arts. 199 & 185(3)-High Court dismissing writ petition both on merits as well as on ground of default in appearance-Counsel of both parties agreeing for case to be remanded to High Court to enable petitioner to file restoration application--Parties also agree ing as to writ petition being heard and decided on merits only in case of restoration application being allowed-High Court's order set aside and case remanded to be taken up on agreed terms.
Messrs S. M. Abdullah 8c Sons v. Messrs Pak Mercantile Corpn. Ltd. P L D 1976 Kar. 268 and Muhammad Haleem and others v. H. H. Mohammad 1Nasim and others P L D 1969 S C 270 ref.
S. M. Zafar, Senior Advocate and Tanvir Ahmad, Advocate-on-Record 'f for Petitioners.
A. R. Sheikh, Senior Advocate and Maqbool Ahmad, Advocate-on Record for Respondents.
Date of hearing : 11th March, 1980.
.---As this petition has been disposed of by consent, we would only state here that the petitioner had filed a writ petition in the Lahore High Court against the orders of the Deputy Settlement Commissioner and the Settlement Commissioner, Rawalpindi and in the events that happened, this writ petition had come up for hearing before a learned Single Judge of the Lahore High Court on 8th June 1976. As the petitioner and his learned counsel were absent, the learned Single Judge could have dismissed the writ petition for default. Instead of so doing, he also examined the merits of the petitioner's claim and dismissed the writ petition both on the ground of default and on merits by his order dated 8th June 1976. Hence this petition for leave.
Mr. Akhtar took us through the relevant provisions of Order IX of the Civil Procedure Code and submitted that the learned Single Judge had erred in dismissing the writ petition on merits. He also relied on a judgment reported in Messrs S. M. Abdullah & Sons v. Messrs Pak Mercantile Corpn. Ltd. (1). Learned counsel for the caveator, on the other hand relied on a judgment of this Court reported in Muhammad Haleem and others v. H. H. Mohammad Naim and others (2). However, after some arguments and in view of our observations, both the learned counsel stated that the case could be remanded to the High Court in order to enable the petitioner to file a restoration application against the dismissal of his writ petition for default. And, it was agreed that the writ petition, would be heard and decided on merits only if the restoration application of the petitioner was allowed. Accordingly, we have converted the petition t into an appeal, allowed it and set aside the judgment of the learned Single Judge. The petitioner will file a restoration application in the Lahore High Court for the restoration of his writ petition within two weeks and for this period of two weeks we grant an order of status quo in order to enable the petitioner to approach the High Court for interim-relief if he so desires. As the matter is very old, we hope that the High Court will dispose of the restoration application of the petitioner promptly, and if it allows the restoration application it will hear and decide the writ petition according to law. The appeal is allowed on these terms, but we make no orders as to costs.
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