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(a) Civil Procedure Code (V of 1908)--

0' IX, R. 8--Dismissal of suit in default of appearance Restoration application on same day--Although Court is empowered to dismiss suit should hen defendant appears and plaintiff is absent yet Court, not take strict view of absence of plaintiff in declining relief of restoration where such plaintiff could satisfy Court about sufficiency cause for non-appearance when suit was called for hearing.

Punjab and Kashmir Bank Ltd. v. Sh. Mahboob Alam P L D 1966 (W.P,) Lah. 356 ref.

(b) Civil Procedure Code (V of 1908)--

IX' R 9--Term "sufficient cause", connotation of--Held, such not susceptible of exact definition and no hard and fast rules could be laid down for all times to cover all possible cases Where non-appearance was not intentional and conduct of plaintiff was not such as to make it impossible for Court to proceed further, strict view of "sufficient cause", should not be taken to put a party out of Court and deprive him of decision of his cause on merits.--[Words and phrases].

(c) Civil Procedure Code (V of 1908)_

---Preamble--Principle underlying various provisions of Civil Procedure Code is substantial advancement of interests of justice by adjudication of contending claims of parties on their respective merits after allowing parties full opportunity to lead evidence in support of such claims.

P.D. Shamdasani and others v. Central Bank of India Ltd. AIR 1938 Bom. 199 rel.

(d) Civil Procedure Code (V of 1908)--

---Ss. 115 & 151--Revisional jurisdiction, exercise of--Failure to exercise jurisdiction on proper judicial lines, held, would justify exercise of revisional jurisdiction by High Court in restoring suit for decision on merits--Parties were directed to enter appearance before Trial Court on specified date for further proceedings in suit.

Syed Murtaza Ali Zaidi for Petitioner.

Rafiq Ahmad Malik for Respondent.

Date of hearing: 23rd June, 1985.

The action out of which this civil revision has arisen was brought by Ghulam Hussain petitioner to pre-empt sale of land measuring 4 Kanals alienated on 23-12-1984 by one Imam Bakhsh to Ashiq Hussain and Raziq Hussain . Plaintiff in the suit was presented before learned Senior Civil Judge, Muzaffargarh on 17-1-1982. Vendees contested the suit and in the result of the contest, however, learned trial Court, on 7-9-1982 raised following issues:-

(1) Whether'. plaintiff has superior right of pre-emption O.P.P.

(2) Whether the sum of Rs.8,000 was fixed in good faith and actually paid as sale price at the time of sale O.P.D.

(3) What was the market value of the suit land at the time of sale O.P.Ps.

(4) Whether the suit has been incorrectly valued for the purposes of court-fee and jurisdiction O.P.D.

(5) Whether the plaintiff is estopped by his conduct to bring this suit OP.D.

(6) Whether the defendants are entitled to any amount by way of expenses incurred towards the completion of sale-deed O.P.D.

(7) Relief

2. After issues mere settled. suit was adjourned to 20-10-1982 for parties evidence. It was adjourned to 21-11-1982, 8-1-1983, and then to 3-4-1984, when the plaintiff produced documentary evidence and concluded his affirmative side of the case reserving right to record plaintiff's statement both in affirmative and in rebuttal after defendants had closed their defence. The case was then postponed to 10-5-1983 when the defendants had to produce their evidence in rebuttal. On 10-5-1983 neither the plaintiff nor his counsel appeared while the defendant was present before the Court at the time of the call of the suit for its hearing. As order-sheet shows the suit was called on for hearing, thrice. Each time plaintiff was marked absent. In consequence the suit was dismissed both for want of evidence and default in appearance.

3. On the same day i.e. 10-5-1983, an application for restoration of the suit was moved by the plaintiff. This application was also supported by an affidavit. In the restoration petition, plaintiff gave an explanation for his absence and pleaded that he was standing outside the Court-room since morning i.e. 7-30 a.m. It was alleged that on the first call, plaintiff appeared before the Court and with permission of the Court left to bring his counsel. It was averred that when he returned, another case had been taken up by the Court meanwhile and then he waited for his turn. At about 1-00 p.m. same day, when he appeared, it was disclosed to him that his suit had been dismissed in default of appearance. In this background and with this explanation, he requested the Court to restore the suit and to decide the same on merits. Application for restoration was seriously opposed by the defendants. It was pleaded in defence that absence on part of the plaintiff was intentional and that there was no good or sufficient cause to order restoration of the suit. It was alleged that conduct of the plaintiff was such as to clearly disentitle him to ask for restoration of the suit. In fact it was pleaded that the plaintiff absented only to cause inconvenience to the defendants who had brought their evidence on the aforesaid date. As cause assigned for restoration was disputed by the other side, learned Civil Judge incharge of the proceedings framed following issues:-

(1) Whether there exists sufficient cause for restoration of suit O.P.D.

(2) Relief

4. Parties led evidence in the case. Plaintiff apart from himself, examined one witness. Raziq Hussain defendant appeared as R.W.2 and produced Muhammad Hussain R.W.1 to support the defence. Learned Civil Judge, vide order, dated 20-9-1984 did not feel satisfied with the explanation offered and found that the plaintiff had not furnished sufficient cause justifying restoration of the suit. Consequently, restoration petition was dismissed. An appeal filed in the Court of District Judge Muzaffargarh (Civil Appeal No. 29/18, was dismissed on 10-11-1984 and order of the trial Court refusing restoration was maintained in its entirety. Two orders of the Courts below declining restoration are challenged in revisional jurisdiction at the instance of the plaintiff. Mr. Murtaza Ali Zaidi, counsel for the plaintiff-petitioner contended that Courts below had in the result of misreading of evidence reached palpable incorrect conclusion against the plaintiff in regard to the explanation offered for his absence. It was urged that the plaintiff was present outside the Court-room and had in fact appeared before the Court though his presence was not marked in the order-sheet. I also argued that the plaintiff diligently prosecuted his suit since the time it was instituted, produced his affirmative evidence in support and had no reason, whatsoever, to absent on the date fixed. In an case, counsel urged that the plaintiff was not guilty of gross negligence and since restoration petition was moved the same day and good explanation offered, he was entitled to have his suit restored for decision on merits. He took me through the evidence produced by the parties He also relied on "Punjab and Kashmir Bank Ltd. v. Sh. Mahboob Alar PLD 1966 (W.P.) Lahore 356 to contend that unless the conduct of the petitioner was grossly negligent or that the plaintiff had misconduct himself, the Court in line with the policy of law requiring adjudication on merits was bound to restore the suit. He also pointed out that both Courts below have not found the conduct of the plaintiff to be grossly negligent. Learned counsel for the respondents, in reply, submitted that explanation offered in the restoration petition is not borne out by the evidence produced and the order-sheet maintained by the Court. It was argued that the evidence led in support of the restoration petition was not only seriously discrepant but was also inconsistent with the averments made in the restoration petition. In this, he urged, that the plaintiff had miserably failed to prove "sufficient cause" for his absence on the date fixed for hearing. Counsel submitted that the two Courts, on appreciation of evidence, noticing all the features of the controversy have unanimously found against the plaintiff and this being a finding of fact could not be disturbed in revisional jurisdiction.

5. I have given anxious consideration to the points urged by the counsel for the parties., and have also looked into records of the trial Court. After having heard learned counsel and evaluating their submissions in the light of the trial Court's record, I am of the -firm view that it was a fit case for restoration. Admittedly since institution of suit on 17-1-1982 till the fateful date when the suit was dismissed plaintiff had been diligently pursuing his claim before the civil Court, so much so he had also concluded his affirmative evidence and had reserved his own statement to be recorded after the close of defence by the defendants. On 10-5-1983 defendants had to produce their evidence and thereafter the plaintiff was to produced his evidence in rebuttal. On this date suit was dismissed both for want of evidence and in default of appearance on the side of the plaintiff. It was not disputed that the restoration petition was made the same day which was also supported by an affidavit of the plaintiff. This application not only bears thumb-impression of Ghulam Hussain but also the signatures of his counsel. Evidently this application was moved before the Court rose for the day i.e. 1.30 P.M. It, therefore, clearly shows that the plaintiff was in attendance on the aforesaid date of hearing. Both, plaintiff and his witness have deposed about circumstances in which suit came to be dismissed in default of appearance. A look on the order sheet of 1G-5-1983 indicates that Court had omitted to mention the exact times when the suit had been called on for hearing. Point falling for consideration and decision in the civil revision is whether in the circumstances disclosed on record, plaintiff was entitled to have his suit restored or that order passed by the trial Court, maintained 5Y Court of appeal was proper and just order. This question has engaged my serious attention and in the result of consideration of all the relevant circumstances present on record, I have found that the Courts below have taken too strict view of the absence of the plaintiff in declining relief of restoration. It is true that when defendant appears and plaintiff is absent the Court can dismiss the suit in default, but then in terms of Order IX, Rule 9 of the Code of Civil Procedure the dismissal can be set aside if the plaintiff whose suit had been dismissed in default satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing. It has been repeatedly observed by the superior Courts that term "sufficient cause" is not susceptible of exact definition and no hard and fast rule can be laid down for all times, to cover all possible cases, for each case has its own features and is to be judged on its own peculiar circumstances. In case non-appearance was not intentional and the conduct of the plaintiff was not such as to make it impossible for the Court to proceed further a strict view of "sufficient cause" should not be taken to put a party out of Court and deprive him of a decision of his cause on merits. The principle underlying various provisions of the Code of Civil Procedure is substantial advancement of the interests of justice by adjudication of the contending claims of the parties on their respective merits after allowing them full opportunity to lead evidence in support of their claims brought before the Court for adjudication in P.D. Shamdasani and others v. Central Bank of India Ltd. A I R 1938 Bom. 199, Special Bench of Court observed. In all cases in which applications are made to restore matters summarily, dismissed, there is nearly always some degree of carelessness or negligence on the part of the applicant. But if a person whose suit has been dismissed summarily appears on the same day and produces not some unreasonable excuse for his absence, prima facie the Court ought to exercise its discretion in his favour. Of course the applicant has no absolute right to ask the Court to waive rule in his favour, but it is a good working rule that if he applies at once and thereby shows that his failure to appear was not due to a desire to cause delay, but was bona fide. He ought generally to be given a right to have his case restored on payment of costs. It is a very serious matter to dismiss a man's suit or summons or whatever it may be, without hearing him, and that course ought not to be adopted unless the Court is really satisfied that justice so requires. Thus, a Court should refuse to restore a matter only if there is gross negligence or gross carelessness". When case is examined in the light of above statement and keeping under view the policy of law that preference should be given to the adjudication on merits, I think Courts below have failed to exercise their discretion on proper judicial lines. Conduct of the plaintiff in the light of the trial Court's record cannot be described as grossly negligent or in any manner careless. On the other hand he showed proper diligence in prosecution of his pre-emption claim. A single lapse of the plaintiff within a period of a little over two years when the suit was sub judice before the trial Court has been noticed rather too severely. I, therefore, allow application in revision and order that the suit will be restored to the file subject to payment of Rs.500 as costs to the defendants. Revision is allowed. Parties shall bear costs of the proceedings in this Court as incurred. Parties, who are present, have been directed to enter appearance before learned Civil Judge on 4-7-1985 for further proceedings in the suit.

6. Copy of the order alongwith records requisitioned be sent down, to the trial Court without loss of further time.

A.A. Revision allowed.

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