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Civil Petition for Special Leave to Appeal No. 624 of 1983, decided on 4th September, 1985.
(From the judgment/order of the Lahore High Court, Lahore, dated 5‑2‑1983 in Writ Petition No. 144 of 1983).
‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), O. IX, r.9‑‑Dismissal for default‑‑Sufficient cause for non‑appearance‑‑Plaintiff being a heart patient was present in Court‑‑Plaintiff suffered a heart attack before his case was called out and went away‑‑That being good cause shown for absence, case restored‑‑Order setting aside, dismissal upheld.
Zaki‑ud‑Din Pal, Senior Advocate Supreme Court with Mahmood A. Qureshi, Advocate‑on‑Record for Petitioners.
Nemo for Respondent.
Date of hearing: 4th September, 1985.
‑Leave to appeal has been sought from judgment, dated 5‑2‑1983 of the Lahore High Court; whereby a Writ Petition arising out of a civil suit, was dismissed.
2. Respondent 3 had filed a suit for pre‑emption. It was fixed for evidence on 8‑6‑1977 when none appeared for the plaintiff and it was dismissed for non‑prosecution. On plaintiff's application, the learned trial Judge had found that good cause for absence had been shown and accordingly the suit was restored (after one round of litigation during the inter‑regnum) by the ultimate order passed by it after a remand, on 19‑1‑1982. The petitioners' revision before the District Judge under section 115, C.P.C. failed and on his writ petition the High Court having declined to interfere, they have now sought leave to appeal.
3. Learned counsel tried to argue that on facts alleged and established by the plaintiff no good cause was shown for absence, therefore, the order of restoration by the learned trial Court was without lawful authority. He, in order to support his argument, read the deposition of respondent No. 3 (the plaintiff as his own witness).
4. We having gone through the same do not agree with the learned counsel. The plaintiff was heart‑patient. He was present in Court. He suffered heart‑attack and went away before the case was called out.
His counsel was absent because of his personal involvement in some criminal cases wherein he was making effort to get bail order.
5. Another counsel who, it is contended by the learned counsel for the petitioners, also was engaged by the respondent during the trial of the suit; therefore, it is argued that the restoration of the suit was unjustified. But it has been held by the lower Court that he was in fact not engaged prior to the dismissal of the suit for non‑prosecution. We have examined the copy of the power‑of‑attorney filed by him. It is dated 26‑2‑1979 while the date of dismissal of the suit for non‑prosecution is 8‑6‑1977.
6. After hearing the learned counsel, we do not find any force in this petition and leave to appeal accordingly, is refused.
M.I. Leave refused.
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