1979 PLP 84 (CLC)

Izharul Haque for Appellant. Nemo for Respondent. Record seen. The case has been called several times, but none has appeared on the respondent's side, although it is 9‑25 a.m. now.

2. In the suit for possession by pre‑emption filed by Ali Haider respondent, the trial Court had on 21‑7‑1975. adjourned the matter to 3‑9‑1975 for the plaintiff's evidence in rebuttal and for arguments. On the latter date, however, none appeared on the plaintiff's side, whereupon the trial Court sent for the Munshi of the plaintiff's counsel and directed him to inform the Advocate to appear on the next date, i.e. 4‑9‑1975. But when the case was called on for .hearing on 4‑9‑1975, neither the plaintiff nor his counsel was in attendance, whereupon the plaintiff's suit was dismissed under Order IX, rule 8, C. P. C. The plaintiff moved an appli cation for restoration on 9‑9‑1975, but the same, after hearing the parties,. was dismissed on 26‑1‑1976. The plaintiff then went in appeal but the learned Addl. District Judge, Gujrat on 14‑12‑1976 set aside the order of the trial Court dated 26‑1‑1976 and remanded the case for affording opportunity to the appellant to establish that he was prevented to attend the Court by a sufficient cause." This led the defendant to move the present revision petition.

3. The plaintiff's excuse for his non‑appearance had been that his daughter had suffered mental derangement. But the ground was not accepted by the trial .Court for the reason as incorporated in the order dated 26‑1‑1976, that the plaintiff had not produced any material in support of that assertion. The learned appellate Court, however, misread that order as "the ailment of his daughter is not connected to the present proceedings". I do not understand how this misreading took place because the writing in the original order is quite clear and reads :‑ The appellate Court's inference that the "observation of the learned trial Court that the illness of his daughter is not related to the present pro ceedings is not based on the correct appreciation of the provisions of Order IX, rule 9," is, therefore, uncalled for. I also see no basis for the learned appellate Court having held that the trial Court while dismissing the plaintiff's application had not provided an opportunity to him to satisfy the Court that there was sufficient cause for his non‑appearance. The order dated 26‑1‑1976 clearly mentions the presence of the parties and the fact that arguments were heard on the application.

4. The revision petition is, therefore, accepted and the order of the appellate Court dated 14‑12‑1976, is set aside. Petition accepted.