P L D (PLP)

C.M.A. No.7839/89 under Order K rule 9 read with section 151, C.P.C moved on behalf of plaintiff seeks the restoration of this suit dismissed on 15-11-1989 by a learned Single Judge of this Court. Plaintiffs have also challenged the dismissal order in High Court Appeal No.269/89, in case the same is treated to be under rule 3 of Order XVII, C.P.C. The first point, therefore, to be considered here is as to whether the dismissal order, was under rule 2 or rule 3 of Order XVII, for, if it is found to be under the latter the present application would not be maintainable. The said order reads as follows: "The plaintiffs and their counsel have been called absent. The matter was called earlier in the morning but even then none was present on their behalf. Syed Inayat Ali and Mr. Abid Zuberi holding brief for Mr. Khalid M. Ishaq are present on behalf of the defendant No.3. They deny the claim of plaintiffs and claim. costs. The suit under the circumstances is dismissed with costs. C.MA No.6251/89 has. -become infructuous and the game is also dismissed. The ad interim injunction earlier granted in favour of the plaintiffs also stands discharged." As is apparent from the above order the suit was not decided on merits and indeed could not be, for, the evidence in the case had still to be recorded and there was no material on record to enable the Court to give a decision on merits. The suit had been dismissed due to absence of the plaintiffs and denial of plaintiffs' claim by the only defendant who was at that time being represented by counsel. Under rule 2 of Order XVII, if, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of he modes directed in that behalf by Order IX or make such other order as it thinks fit", and it would appear that the mode adopted by the learned Judge for the disposal of the suit was one contemplated by rule 8 of Order IX Another reason why the said dismissal order cannot be considered to be under rule 3 of Order XVII is that, to attract the provisions of that rule adjournment should have been granted at the instance of the party in default, whereas here the List adjournment was by the Court in the routine manner for service of notice of miscellaneous application moved by one of the defendants. As such, in my view the said order. cannot be considered to have been passed under rule 3 of Order XVII but should be taken to be covered by rule 2 thereof read with rule 8 of Order M C.P.C. and, therefore, the present application is maintainable. The admitted position is that on 15-11-1989 this suit was at serial No.8 of the cause lis4 being last but one of the cases fixed before the learned Judge. It appears from the affidavit filed in support of the application that on the same day plaintiffs' counsel had another matter before D.B.-I which was the first amongst the cases for Katcha Peshi. The counsel, therefore, proceeded to D.B.-I, and, estimating this suit to be taken up immediately before or soon after the recess, remained before the D.B. in connection with his case there till about 10-00 a.m. When he came to attend this suit just before 10-00 a.m, he learnt of its dismissal at 9-45 a.m. Plaintiffs' witness whose affidavit-in-evidence had already been riled claims to have reached the Court at 8-30 a.m. on that day but went about searching his counsel and on finding him busy before D.B.-I waited there for the counsel to be free, Mr. Mansoorul Arfin, the learned counsel for defendant No.2 opposing the application submitted that plaintiffs' counsel's case before D.B.-I being the first listed for Katcha Peshi was reached around 8-20 a.m. and therefore there was no justification for him to come to attend this suit at 10-00 a.m., as such, he contended that for the intervening period of about one and half hours there was no plausible explanation. However, it would appear from the personal affidavit of Mr. Abdul Sattar Sheikh, counsel for the plaintiffs and Hanif Maniar, who is the father-in-law of one of the plaintiffs and also her witness, the case before D.B.-I though initially called at 8-20 a.m. was kept aside and taken up later at 9-30 a.m. This suit being last but one of the cases fixed before the learned Single Judge, in the estimation of plaintiffs' counsel,. was likely to be reached just before recess or soon thereafter and on the basis of such estimation the counsel stayed b-,fore D.B.-I long enough to conclude his case there before coming to attend this suit at about 10-00 a.m., not a very late hour considering the position of the case on the list. Unfortunately, however, it appears that other cases listed before this suit did not proceed with the result that the suit which in the judgment of the counsel was likely to be reached around recess time, had, by 9-45 a.m. already been called on twice and dismissed. It cannot, as such, be said that counsel's absence from the Court when this case was called at 9-45 a.m. has not been adequately explained though, of course, his estimation of the time when the suit was likely to reach proved wrong. At best, therefore, the absence of the counsel may be attributable to his faulty judgment and not to any deliberate act. After all the counsel had to appear before D.B.-I too and in such circumstances, where an Advocate has to appear in different Courts on a day, the Court cannot remain unmindful of his difficulties. The fact that, the counsel later appeared before the Court alongwith his witness lends support to his contention that his non-appearance earlier was not intentional. It is true that none. of the plaintiffs too were present in Court when the suit was called and dismissed but it would seem that plaintiffs' witness who also claims himself to be their attorney had come to the Court and was present in the Court-room of D.B.-I where he had gone looking for his counsel. It appears, therefore, that his absence from the Court of the learned Single Judge was due to his ignorance of Court procedure rather than negligence, for otherwise, when he had specifically come for recording his evidence, there was no apparent reason for him to remain away from the Court The upshot of the above discussion is that I grant the application, recall the order dated 15-11-1989 and restore the suit in the position it was when dismissed. In consequence of such restoration the ad interim injunction then in operation stands revived. M.BA./R-249/K Suit restored.