1989 PLP 1754 (CLC)

S. Bashir Hussain Shah Zaidi for Petitioner. This revision application is directed against the order dated 2‑12‑1987 of the First Appellate Court, whereby the order dated 12‑9‑1987 passed by the trial Court accepting the applicant's application for restoration of her suit under Order 9 Rule 8, C.P.C. was upheld. The respondent had filed a suit on 22‑10‑1983 for possession of a vacant site which the petitioner‑defendant had forcibly occupied. The suit was contested by the defendant‑petitioner by filing a written statement. Thereafter on 11‑2‑1987 by an administrative order of the District Judge the suit was transferred from the Court of Senior Civil Judge to that of the Civil Judge, D.I. Khan. The suit was taken up on 3‑3‑1987 when it was dismissed in default of appearance of the plaintiff‑respondent although the counsel for the defendant petitioner were present. The plaintiff‑respondent on the same day filed an application for restoration of the suit on the averment that the suit had been transferred to the Court of Civil Judge without any notice to the plaintiff respondent and that her attorney was waiting for the call outside the Court of the Senior Civil Judge. This application was supported by an affirmation on oath. The application was contested. It was not controverted specifically that any date was fixed for the appearance of the parties in the transferee Court. The case was adjourned to 11‑6‑1987 when the application for restoration of the suit was dismissed in default on the same day. The plaintiff‑respondent moved an application for the revival of application for restoration of the suit on the same day. It was alleged in that application that the absence of the attorney on the date fixed was not wilful because counsel for the plaintiff‑respondent was busy in the Court of Session and when he was free and attended the transferee Court it transpired that the application had been dismissed at about 9‑00 or 9.30 a.m. This application was resisted by her and vide order dated 26‑7‑1987 the Civil Judge restored the application on payment of cost and posted the case to 12‑9‑1987 for arguments on the application for restoration of the suit. On the last mentioned date after hearing the parties the learned trial Judge restored the suit on the ground that since no date had been fixed for the attendance of the parties in the transferee Court, therefore, the absence of the plaintiff‑respondent was not wilful. The learned District Judge held that the suit had been fixed for evidence of the plaintiff on 3‑3‑1987 but before that his predecessor‑in‑office transferred it on 12‑2‑1987 to the diary of the Civil Judge D.I. Khan. He further observed that since no notice of transfer had been given to the plaintiff‑respondent, therefore, her absence on 3‑3‑1987 at the time of call was not wilful. He was also of the view that since the application for restoration of the suit was submitted on the day on which the suit was dismissed in ‑default, therefore, the learned Civil Judge had rightly restored the suit. The learned District Judge, therefore, dismissed the appeal. Hence this petition in revision under section 115 of the C.P.C. 2. The learned counsel for the petitioner has assailed the impugned orders on the ground that there was no sufficient cause for setting aside the order of dismissal of the suit and also of the application for restoration. 3. The contention of the learned counsel seems to be incorrect because on 12‑2‑1987 when the suit was transferred administratively, no date for hearing before the transferee Court was given. It has been averred in the application for restoration of the suit that the attorney of the plaintiff‑respondent was waiting outside the Court of Senior Civil Judge while the suit has been transferred to the Court of Civil Judge. This assertion has been supported by an affidavit against, which there was no rebuttal. Therefore, it was not expected of the applicant to appear before the transferee Court on any date of hearing because it had not been fixed by the transferor Court. The learned counsel for the petitioner has thus failed to support his contention that the jurisdiction exercised by the learned Civil Judge as also the learned District Judge suffered from any material irregularity. 4. In view of this, I find no substance in the revision petition and dismiss the same in limine. AA.‑792/P Revision dismissed.