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Suit No.271 of 1976, decided on 23rd November, 1986.

---O.IX, R.9--Dismissal of suit for non-prosecution--Plaintiff praying for restoration of suit, making inconsistent statements in affidavit and rejoinder filed by him--No cogent and valid reasons shown for absence of plaintiff and his counsel on date when matter was fixed for evidence--Prayer for restoration of suit rejected.

Faizuddin for Plaintiff.

Nisar Ali for Defendants Nos.l to 7.

Muslim Naqvi for Defendant No.8.

This is an application under Order IX, rule 9, C.P.C. for setting aside the order dated 20th October, 1986 passed by me, dismissing the suit for non-prosecution.

Mr. Faizuddin, learned counsel for the Plaintiff has filed a long affidavit of his client in support of his application and also a rejoinder to the counter affidavit filed by defendants Nos.l to 7. His submission is that his two interlocutory applications under Order 34 Rules 1 and 2 and Order 38, rule 5 C.P.C. were fixed for 28-10-1986 for service on the defendants Nos.9 and 10 before Additional Registrar and the matter should not had been fixed for evidence before the disposal of the said two applications and so this Court was not empowered to dismiss the suit for non-prosecution on 20-10-1986. It is an admitted position that the suit was earlier fixed for evidence. In fact, the plaintiff had completed his examination-in-chief and he was to be cross-examined on the dated fixed i.e. 20-10-1986. The matter fixed for evidence for 20-10-1986 appeared in the weekly list issued on 8-10-1986. The matter also appeared for evidence in the daily list for 20-10-1986. I have gone through the long affidavit and rejoinder filed by the plaintiff, but I find that the paragraphs relevant for the purpose of deciding this application, strictly speaking, are paragraph No.10 of the affidavit and paragraphs Nos.5 and 6 of the rejoinder. There seems to be inconsistent statements made by the Plaintiff in the affidavit and the rejoinder and there seems to be no cogent reason for the absence of the plaintiff and the counsel on the date viz. 20-10-1986. A long story narrated in the affidavit is uncalled for. In fact, it gives no explanation for the absence of the plaintiff and his Advocate on the date fixed. In para 19 of the affidavit it is stated that the plaintiff came to know of the case fixed for 20-10-1986 at 10.00 a.m. and he reached the Court at 11-00 o'clock, but was surprised to see that the suit was already dismissed. There is no mention of the Advocate. In paragraph No.5 of the rejoinder it is stated by him that he learnt about the dismissal of the suit which is described as 'disposed of when he visited his counsel on 20-10-1986 (perhaps in the afternoon). The fact of reaching the Court at 11.00 a.m. seems to be false and motivated by the fact that the order of dismissal was passed at 10.20 a. m. after calling out the matter second time.

The submission of the learned counsel for the plaintiff that his two applications were fixed for 28-10-1986 before the Additional Registrar for injunction and attachment before Judgment and the matter should not have been fixed in Court for evidence before the disposal of the said applications, has no force as, firstly, the said applications were not ripe for fixing them in Court as notices to some of the defendants were still un-served on those applications and, secondly, there was no order of this Court to that effect.

I, therefore, reject this application as no valid reason has been shown for the absence of the plaintiff and his counsel on the date when the matter was fixed in Court for evidence. No other plea was taken or law was cited before me.

M. Y. H. /I-12/ K Petition rejected.

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