P L D 1950 Baghdad﷓ul﷓Jadid 19 (PLP)

On the 9th August 1943 the appellant instituted a suit against the respondents for recovery of Rs. 2,

000. Protracted proceed ings took place in the suit until the 14th July 1945 when it was adjourned to the 14th August for arguments. On that day the case was called on' for hearing at 9 a. m. but the appel lant was absent. The Additional District judge consequently dismissed the suit as stated above. A quarter of an hour later the appellant appeared in Court and made an application under O. IX. R.

9. Civil Procedure Code, for setting aside the dismissal. It was sated therein that' the petitioner's wife was seriously ill and that he had gone to consult the doctor about her illness. This application was supported by an affidavit duly sworn. On the 21st October the plaintiff also put in written arguments in support of his application and stressed ;‑‑ (a) that as the parties evidence had closed and only argu ments were to be heard, the case could not be legally dismissed under O. IX, r.

8. Civil Procedure Code. even if the appellant happened to be absent. (b) that the Court should have waited up to the end of the day. This application was resifted by the respondents. The appellant examined Dr. Abdul Aziz to show that lie had actually on the day in question visited .the doctor in con nection with his 'wife's .illness. " The Additional District judge, however, did not‑rely upon this evidence and holding that there were no grounds for setting aside the order of dismissal rejected the application: From this order the appellant preferred an appeal to this Court which was heard by Syed Ghulam Murtaza Shah, Judge. The learned judge agreed with the order of the Court below and dismissed the appeal. We have heard the parties and have come to the conclusion that in the special circumstances of the case the order of dismissal of the suit should be set aside. The absence` was obviously) unintentional inasmuch as the appellant had appeared in Court within fifteen minutes of the dismissal and even if there was no sufficient ground for his absence, the appellant deserved a lenient consideration at the hands of the Court. ‑Reference in this connection may be made to a Division Bench judgment of the Bombay High Court, reported as 53 I. C. 253 which was later followed by the Rangoon High Court in 95 I.C.

521. Even otherwise, this order could only be made under O. XVII, R. 2, Civil Procedure Code, and not O. IX, R. 8, Civil Procedure Code which‑ comes into play only when the parties absent themselves on the first hearing, and under that rule it is not imperative on a Court to dismiss the suit in the absence of the plaintiff but it can make even arty other order that it thinks fit. See A I R 1929 Patna 248 and A I R 1939 Nag.

213. Considering that no evidence was to be led and the case was fixed for arguments only the Court could easily have heard the arguments of the other side and disposed of the case on the merits. 1t could even wait until the end of the day for this pur pose. On the grounds set forth above we allow this appeal, set aside the order of dismissal and remand the case to the Court of Subordinate Judge, Bahawalpur, for disposal in accordance with law. There 'will be no order as to costs. A. H. Appeal allowed.