P L D 1966 (W (PLP)

Dates of hearing: 2nd and 3rd July 1965. This revision petition is directed against the order of Mr. C. A. Rehman, Civil Judge 1st Class, Lahore, dated 7‑6‑61, whereby he dismissed an application under Order IX, rule 4, C. P. C. (though purported to have been made under rule 9 ibid) by the petitioner Bank for the restoration of its suit.

2. The Punjab & Kashmir Bank Ltd. (under Liquidation), the petitioner, brought a suit for the recovery of Rs. 32,952 against Sh. Mahboob Alam (the respondent) in the Court of Senior Civil Judge, Lahore. The suit was latter transferred to the Court of Civil Judge, 1st Class, Lahore On 28.10‑1959, when the parties were to produce their evidence in the suit, it was dismissed owing to the non‑appearance of the parties and their counsel.

3. Three days after the dismissal of the suit, that is to say, on the 30th of October 1959, an application seeking the restoration of suit was made on the ground that Mr. A. R. Sheikh, the petitioner's learned counsel had instructed his junior Mr. Hyder Kidwai, Advocate, to appear in the suit. The latter was busy in the Court of the Senior Civil Judge, when the suit was called by the Civil Judge. But before he reached the latter Court the suit was dismissed. The respondent resisted the application on a number of preliminary objections concerning the maintainability of the application, all of which were repelled by the learned Civil Judge, vide his order under revision. On the principal issue, namely, as to whether there was sufficient cause for the restoration of suit, the learned Civil Judge after hearing the evidence of the parties found it as a fact that Mr. Hyder Kidwai was instructed by his senior to appear in the suit and that when the suit was called Mr. Hyder Kidwai was busy in the Court of Senior Civil Judge. The learned Civil Judge further found that Mr. Maula Bakhsh, the Recovery Clerk, was also deputed to remain in attendance so that when the case was called he should inform Mr. Hyder Kidwai, if he was busy elsewhere. Despite the above findings, the learned Civil Judge declined to restore the suit because according to him Maula Bakhsh instead of having gone to call Mr. Kidwai, ought to have waited till the suit was actually called and should have himself appeared in Court and should have gone to inform counsel, only if so permitted by the Court. The learned Civil Judge thought that though the non‑appearance of Mr. Kidwai might be explainable, there was no sufficient cause for the non‑appearance of the Bank's representative, Maula Bakhsh, and this appeared to justify the learn ed Civil Judge to refuse the discretionary relief to the petitioner. It is, however, pertinent to point out that there is no definitive finding of any negligence against the Bank's representative or its counsel. On the other hand, both of them are proved to have `t gone to the Court in connection with the case: In refusing to restore the suit, the learned Civil Judge relied upon a recent judgment of this Court in Muhammad Khan v. Mir Sardar Ali (PLD 1961 B J 42) in which it was, inter alia, observed that absence of counsel on account of being busy in another Court is not always a sufficient cause "for setting aside the order of dismissal". It appears that the Civil Judge did not care to read the whole report, for ultimately on the facts of that case, the learned Judges set aside the order of dismissal of the suit, despite the non‑appearance of counsel, in the circumstances, somewhat similar to this case.

4. A number of cases were cited at the Bar for and against the proposition as to whether in the circumstances of this case, the suit should be restored. Each such case proceeded on its peculiar facts. But one thing that stands out clearly from the perusal of the cases is this, that in the great majority of these cases the Courts, in the absence of special reasons to the contrary, have always leaned in; favour of substantial justice. This is because law favours adjudication of disputes on merits. In the instant case, in my opinion, the learned Civil Judge, has taken too narrow a view of the matter. He completely overlook ed the fact that the suit was for the recovery of Rs. 32,952 which is an enormous amount. He virtually found that the petitioner had made reasonably satisfactory arrangement for appearance on its behalf; yet for reasons which are scarcely cogent or adequate, he refused to restore the suit.

5. Quite apart from the above aspect of the matter, it is difficult to get rid of the impression that the learned Civil Judge, who dismissed the suit acted hastily, in contravention of the clear instructions in High Court Rules & Orders Volume 1, Part J, Ch.

1. In Rules 5 and 6, ibid, the general tendency among judicial officers to dismiss cases in default hastily is deprecated in no unmistakable terms. Rule 6 reads:‑ 1 "Some judicial officers are inclined to dismiss cases in default hastily in order to show an increased out‑turn. This tendency must be strongly deprecated. No case should be dismissed with out giving a party reasonable opportunity to appear as indicated above . . . . . When a suit or application is dismissed in default, the exact time of dismissal should be noted in the order by the Presiding Officer in his own hand." The order of dismissal does not show that the learned Civil Judge cared to wait for the plaintiff's counsel to appear. The exact hour of dismissal is not indicated on the file. It seems that no sooner the case was called, than it was dismissed because nobody immediately turned up to appear in response to the call. As pointed in rule 5 ibid, it is impossible to expect a man to remain in constant attendance for the whole of the time during which the Court is sitting.

6. Since the suit was dismissed in violation of the provisions of the above rules, which are binding on the subordinate Courts, refusing to restore the suit also overlooked the above rules. In my opinion, a case is made out for the exercise of the revisional jurisdiction in the case. 1, accordingly, accept the revision peti tion, set aside the order of the Court below, restore the suit to its original number and direct that it shall be tried and disposed of in accordance with law with due expedition. In the circum stances of the case, I make no order as to costs. K. B. A. Petition accepted.