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Civil Revision No. 512‑D of 1982, decided on 5th April, 1983.

‑‑ O. IX, r. 4‑Sufficient cause for non‑appearance‑Non‑applica tion of conscious mind to‑Plaintiff's counsel filing application on same day for setting aside dismissal in default and restoration of suit supported by his own affidavit and also certificate of his business at relevant time before Sessions Judge‑Plaintiff also filing affidavit‑Trial Court dismissing application without applying conscious mind to averments in application‑Held, application's disposal not lawful and amounts to failure to exercise jurisdiction.

Malik Noor Muhammad Awan for Appellant.

Malik Allalh Yar Khan for Respondent.

Date of hearing : 5th April, 1983.

This revision petition has been filed as a result of the fact that the suit of the petitioner was dismissed and despite an application being made on the same day supported by an affidavit of the learned counsel, it was not restored. An appeal before a learned Additional District Judge also met with failure.

2. I notice that the suit had been dismissed on two‑fold grounds. First is default of appearance of the plaintiff and his counsel. The second is that the witnesses of the plaintiff were not present. It is clear on the record that on coming to know of the dismissal of the suit, the plaintiff's counsel filed an application the same day for setting aside the order of dismissal in default and restoration of the suit supported by his own affidavit and also a certificate that he was busy before the learned Sessions Judge arguing a matter. An affidavit of the petitioner was also tiled. The learned trial Court dismissed this application by a short order dated 5th January, 1981. A perusal of this order shows the no conscious mind has beets applied to the averments made in the application and thus there has been no lawful disposal of this application. This amounts to failure to exercise jurisdiction.

3. In so far as the ground of Order XVII, rule 3, C.P.C. is concerned, the view of the Courts below seems to be misconceived because in the facts and circumstances of the case no action in terms of the said rule has been at all taken. This rule visualizes that notwithstanding a default of the kind mentioned therein, the trial Court shall proceed to decide the suit forthwith. No steps were taken towards the decision of the case. Instead, the suit was dismissed for default of appearance. The view thus is not sustainable in law.

4. I would, therefore, accept this revision petition, set aside the impugned orders and remand the case to the trial Court for lawful dis posal of the petitioner‑plaintiff's application for restoration of the suit.

5. In view of the reasonable attitude adopted by. Malik Allah Yar Khan learned counsel for the respondent, there will be no order as to costs.

K. M. A. Petition accepted.

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