P L D 1976 Karachi 953 (PLP)

This is an application under Order IX, rule 4, C. P. C. for restoration of suit dismissed for default of appearance of the plaintiffs and their Advocate on 26-5-1976. The defendants were also absent when the suit was dismissed and they were not represented by any Advocate. It is contended by Mr. S. Nasiruddin, the learned Advocate for the plaintiffs that notice of this application to the defendant is not necessary as the defendants were absent when the suit was dismissed. In order to examine the validity of the contention it is necessary to refer to the relevant provisions of the Code of Civil Procedure. These are rules 4, 9 and 13 of Order IX, rule 4 provided as follows : "Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his not paying the court-fee and postal charges (if any) required within the time fixed before the issue of the summons, or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit" However, for restoration of a suit dismissed in default of appearance of the plaintiff notice is necessary before an order for restoration of the suit can be passed as provided in sub-rule (2), rule 9 of Order IX of the Code of Civil Procedure. Similarly, for setting aside an ex parte decree, notice is necessary before the same can be set aside as provided in the second proviso to rule 13 of Order IX of the Code of Civil Procedure. It will be seen from the provisions of rule 4 quoted above that forl restoration of a suit dismissed for default of appearance of both plaintiff and defendant no such restriction has been imposed as is imposed under rules 9 and 13, Order IX, C. P. C. Therefore, it naturally follows that a suit dismissed in default of appearance of both the parties, can be restored on an application moved by the plaintiff, without notice to the defendant. Support can be drawn from the following observations of their Lordships of the Supreme Court of Pakistan in Sardar Abdul Majid Khan Lashari v. The Asio-African Co. Ltd. (1972 S C M R 236): "The execution application was dismissed in the absence of both the parties. In such circumstances no notice was necessary for the petitioner. There is no force in the petition. The petition is dismissed." Although the above rule laid down by their Lordships of the Supreme Court is in connection with an execution application but, obviously, power to restore the execution application without notice is referable to the provisions of Order IX, rule 4, C. P. C. Reliance can also be placed on Birj Lal v. Bua Ram and others (17 1 C 292) wherein Allahabad High Court made the following observations: "The rules on the subject of dismissal and restoration of suits are given in Order IX of the Code. If a suit is dismissed in the absence of both the plaintiff and the defendant, the suit can be restored on the application of the plaintiff without issuing any notice to the defendant." The above-cited case was followed in Ramji Lai v. Kesheo Ram and another (A I R 1923 Oudh 55). The cause of absence of the learned Advocate for the plaintiff on the -date of hearing, as explained by him in the affidavit fn support of the application, inter alia is that his name did not appear in the cause list of,, the day although he filed power on behalf of the plaintiff. It is correct that the learned Advocate's name did not appear in the cause list of the day and vakalatnama filed by him is available on the record. Therefore, in my opinion sufficient cause has been shown for restoration of the suit. I, therefore, accept the application and restore the suit. Let it be fixed for hearing on 10-8-1976. S. A. H. Petition accepted.