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Civil Revision Petition No. 130 of 1957, decided on 2nd November, 1959.

O. IX, r. 8 & O. XVII, r. 2‑Evidence recorded and case fixed for arguments‑Court not to dismiss suit in default of appearance of plaintiff Court may take action under O. XVII, r. 3.

Jhanda Singh v. Sadiq Muhammad I L R 5 Lah. 218 and Langar Khan v. Zakir and others A I R 1934 Lah. 56 ref.

Mian Muhammad Shafi for Petitioner.

Muhammad Yahya for Respondent No. 3.

Dates of hearing :19th October 1959 and 2nd November 1959.

Ali Ahmad Khan Lodhi filed a suit against Tabarrak Ahmad Khan and others for the recovery of a sum of Rs. 2,225. After recording evidence of the parties, the learned Civil Judge, by his order dated the 14th of January 1957, fixed the case for 22nd of January 1957, for arguments. When the case was taken up on the 22nd of January 1957, neither the plaintiff nor his counsel was present. The learned Civil Judge dismissed the suit under Order XVII, rule 2 read with Order IX; rule 8 of the Code of Civil Procedure. Ali Ahmad Khan Lodhi (plaintiff) has come up in revision against this order.

2. It has been contended that the suit was ripe for judgment and, therefore, the learned Civil Judge was not right in dismissing it in default. Mr. Muhammad Shafi, the learned counsel for the petitioner, relied on Jhanda Singh v. Sadiq Muhammad (I L R 5 Lah. 218) in support of his contention. In the aforesaid case the plaintiffs had taken a date for arguments and they failed to appear on the date given to them at their own request whereupon the learned trial Judge proceeded under Order XVII, rule 3 of the Code of Civil Procedure and decided the case on merits. The plaintiffs, who felt aggrieved by that order, came up in appeal to the High Court. Broadway and Abdur Rauf, JJ., held that rule 3 of Order XVII, did apply to the facts of the case. In Langar Khan v. Zukir and others (A I R 1934 Lah. 56) the evidence of the parties was recorded in a pre‑emption case and the matter was referred to Commissioner to report as to the value of the land involved in the suit. On the date fixed for the return of the report, the plaintiff was absent from the Court. The Commissioner had also not submitted the report. The trial Judge dismissed the suit under Order IX, rule 8. The plaintiff, who felt aggrieved, came to the High Court in revision. Jai Lal, J., held that the case really fell under Order XVII, rule 2 which gives a discretion to the trial Court either to proceed under Order IX, rule 8 or to make such order as it thinks fit. Jai Lal, J., remanded the case with a direction to proceed with the hearing of the suit in accordance with law from the stage at which it was dismissed under Order XVII, rule 2 read with Order IX, rule 8 of the Code of Civil Procedure.

3. In the case under consideration, it has been concede that the entire evidence of the parties had been recorded. Thus the case was ripe for judgment. The learned Civil Judge could have taken action under Order XVII, rule 3, but should not have dismissed the case under Order IX, rule 8. I, therefore, accept the petition, set aside the order of the learned Civil Judge ands remand the case to him with a direction to proceed with the hearing of the suit in accordance with law from the stage at which it was dismissed under Order XVII, rule 2 read with Order IX, rule 8 of the Code of Civil Procedure. I consider that the plaintiff should bear all the costs of the proceedings from the date on which the suit was dismissed in default up to the date of this order irrespective of the result of the suit because the present pro ceedings are the result of the plaintiff's default in appearing in Court.

K. M. A. Petition accepted.

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