1986 PLP 1441 (CLC)

3. In Sharafat All's case, application for restoration of suit was accompanied by an affidavit but it was dismissed by a Civil Judge without calling upon the respondent to file reply thereto. The only ground on which the application was dismissed was that no explanation had been furnished regarding absence of counsel for the plaintiff. It was in these circumstances, therefore, that the order of the learned Civil Judge was set aside by my learned brother Gul Zarin Kiyani, J. and the case remanded to the learned trial Court for fresh decision after "calling for reply and affording an opportunity to adduce evidence to the parties." Observations of my learned brother to which my attention was invited by the learned counsel read as follows:‑ "Proceedings under Order IX, rule 9, C.P.C. are original proceedings. When a petition for restoration is made it has to be decided on evidence and the party is entitled under law to substantiate by evidence the ground taken in support of the restoration petition. In the instant case, the learned Senior Civil Judge without adopting the correct procedure has refused restoration." The present case is distinguishable from the case of Sharafat Ali inasmuch as in this case reply of the petitioner, which was accompanied by an affidavit, was obtained and the suit restored on the basis of the material placed before the learned trial Court.

4. I have been able to lay hands on some precedent cases which do not support the plea of learned counsel for the petitioner that it is necessary to record evidence in an application for restoration of suit and if that is not done before passing order of restoration thereof, the order is not sustainable.

5. In the case of Shib Sahai v. Tika A I R (29) 1942 Oudh 350, application for restoration of a suit was made. It was accompanied by an affidavit. As the application was contested, issues were framed and the evidence invited. No evidence was, however, produced. The application was dismissed by the lower Court for the reason that the affidavit filed by the plaintiff was no evidence of facts alleged therein unless he and his witnesses had been produced in support of those facts and the defendant had an opportunity to test the veracity of the witnesses by cross‑examination. This view was, however, not endorsed by Ghulam Hasan, J. of the Oudh High Court for the following reasons:‑ "I am of opinion that the order of the lower Court cannot be sustained. Order XIX, rule 1, C.P.C., lays down. Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable: Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross -examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit. A perusal of this rule leaves no doubt whatever that it is open to a Court on sufficient grounds to allow proof of facts by means of affidavits, but if the production of the declarant of the affidavit is required in good faith for cross‑examination by any party, the Court shall not use such affidavit in support of the facts alleged therein without the production of the declarant. Rule 2 of Order XIX, Civil P.C., puts the matter further beyond doubt. This rule is to the effect that upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross examination of the deponent. It was perfectly open to the lower Court to have ordered the production of the witness, either of its own motion or at the instance of the defendants, for cross examination in order to satisfy itself about the truth of the allegations in the affidavit. It does not appear from the record that the defendant's counsel asked the Court to order the attendance of the plaintiff so as to give him an opportunity to cross‑examine him, nor did the Court suo motu think it necessary to order the plaintiff's evidence. There was no counter‑affidavit filed by the defendant in answer to the allegations contained in the affidavit. Under the circumstances, it cannot be said that there was no evidence before the Court in support of the allegations contained in the plaintiff's application for restoration of the suit. The view of law taken by the lower Court that the affidavit was no evidence of the facts alleged therein merely because there had been a verbal denial by the defendant without any attempt to controvert it by a counter‑affidavit or without asking the attendance of the plaintiff for the purpose of cross examination, is not supported by the provisions of Order XIX, rules 1 and 2, C.P.C., referred to above. 1 have no doubt whatever that had the attention of the learned Judge been drawn have expressed the opinion which he did that the affidavit was no evidence of the facts alleged therein."

6. The case of President of Pakistan through Chairman, P.W.R., Lahore v. Sarfraz Khan 1980 C L C 541 was an application, under section 5 of the Arbitration Act 1940, for revocation of the authurity of an arbitrator and for appointment of another arbitrator. Allegations made in the application were supported by an affidavit. The respondent filed reply denying the said allegations. He was given an opportunity to put in a counter‑affidavit but he did not do so. It was held by the Civil Judge, before whom the application was filed, that the allegations levelled against the arbitrator were proved by unrebutted testimony in the form of the affidavit given by the applicant. He, therefore, accepted the application. His order was challenged before this Court by means of a revision. One of the arguments raised in the revision was that the respondent should have been afforded an opportunity to cross‑examine the witness who had submitted the affidavit and further an opportunity should have been given to the respondent to produce oral evidence. This plea was not accepted by Aftab Hussain, J. (as he then was) for the reasons given below:‑ "None of these contentions have any force. Order XIX, rules 1 and 2 are relevant in this connection. Rule 1 provides that 'any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable'. There is a province attached to this rule which says that 'where it appears to the Court that either party bona fide desires the production of E witness for cross‑examination, and that such witness can be produced an order shall not be made authorising the evidence of such witness to be given by affidavit'. Rule 2 provides that 'upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the ttendance for cross‑examination of the deponent'. It is apparent from the record that the Court was of the view from the ver3 start that the matter in dispute could be settled by affidavits o1 the parties. None of the parties raised any objection to the adoption of this procedure. An opportunity was given to the petitioner to put in a counter‑affidavit and sufficient time was granted for this purpose. But the petitioner failed to produce any counter‑affidavit. No request for further adjournment o the case to enable the petitioner to file an affidavit or to cross examine the respondent‑deponent or to produce any oral evidence was made. It is not, therefore, open to the petitioner to take all these objections at this stage, particularly when it was within the discretion of the Court to direct that a particular fact mat be proved by affidavit. Sub‑rule (1) of rule 2 confers power upon the party to seek the attendance for cross‑examination o the deponent but for this a specific request has to be made. Ii the absence of any request to this effect the petitioner cannot make a grievance that he was not afforded an opportunity t, cross‑examine the witness." In Mst. Baigan v. Abdul Hakeem and another 1982 SCMR 673 an appeal pending in this Court was dismissed in default. A petitio was made for re‑admission of the appeal stating that the appellant' counsel, Rana Abdur Rahim, Advocate, was busy before another Bench of this Court. In support of the petition, affidavit of the clerk of learned counsel was filed. A reply was submitted to contest the petition. In that reply, averments made in the petition were controverted. Objection was also raised that the learned counsel for the appellant had not filed his own affidavit to the effect that he was appearing before another Bench. The reply too was accompanied by an affidavit of the respondent's attorney. Allah Ditta, clerk of learned counsel for the appellant, was cross‑examined by learned counsel for the respondent, at his request. The appeal was restored by a learned Single Judge of this Court. His order was challenged before the Supreme Court. One of the arguments advanced before the Supreme Court was that the petitioner before the Supreme Court (respondent in the appeal) was not called upon by the learned Single Judge to furnish evidence in rebuttal to show that Rana Abdul Rahim was not busy before another Bench. This plea was repelled by the Supreme Court with the remarks that Court was not bound formally to call upon the petitioner to furnish rebuttal. Relevant observations read as follows:‑ "It further needs to be observed that the stand taken by the learned counsel that the High Court should have called upon the petitioner to furnish such evidence in rebuttal is untenable. If an application could be made seeking a direct to Allah Ditta deponent to submit for cross‑examination, an application could also be made from the petitioner's side for summoning of the relevant material. The Court was not bound formally to call upon the petitioner to furnish rebuttal."

7. Provisions relating to restoration of suit, dismissed in default, are contained in Order IX, rule 9 of the Code of Civil Procedure and there is nothing in these provisions to suggest that a suit cannot be restored without framing issues and recording evidence in the application "for restoration of suit. What is required of the plaintiff is that he should satisfy the Court, by examining witnesses or otherwise, that there is sufficient cause for his non‑appearance. In view of the provisions of Order IX, rule 9 of the Code of Civil Procedure, coupled with the cases of Shib Sahai; The President, of Pakistan through Chairman, P.W.R., Lahore and Mst. Baigan, and with utmost respect for my learned brother who decided the case of Sharafat Ali, I am of the view that on the dismissal of a suit in default if the plaintiff makes an application for restoration of the suit and satisfies the Court, by placing before it affidavit, with or without other material, that there is sufficient cause for restoration of the B suit, the Court can order restoration thereof without framing issues or examining witnesses thereon. Needless to say that before recording his satisfaction, the Court would take into account the affidavit and other material, if any, produced by the defendant. If the plaintiff is unable to satisfy the Court by means of affidavit and other material, there will be nothing illegal or irregular on the part of the Court if it proceeds to frame issues and examine witnesses of the parties before deciding the matter relating to restoration of suit. 9,. As for examination of the declarant of an affidavit filed in support of an application for restoration of suit or the reply thereto, he can be cross‑examined by the party against whom the affidavit is filed, at the request of such party or by the Court suo motu. However. if no C such request is received or the Court does not make a suo motu order for cross‑examining the deponent, his affidavit cannot be thrown out merely for the reason that he did not appear as a witness. If the deponent refuses to submit himself for cross‑examination when so directed, his affidavit cannot be taken into consideration.

10. In the instant case, the respondent made application for restoration of his suit on the ground that on 13th June, 1985 when the suit was adjourned to 6th July, 1985 the attorney of the respondent and his learned counsel were not present and that when they subsequently contacted the learned trial Court they were told by the Reader of the Court that the suit has been adjourned to 8th July, 1985. Plea of the respondent that his absence from the Court on 6th July, 1985 was due to bona fide mistake relating to the date of hearing was supported by the affidavit of his attorney and other material placed by him on the record. Petitioner's reply, by which he opposed the respondent's application, was also accompanied by his affidavit but not by any material like the one furnished by the respondent. The petitioner did not make an application for cross‑examining the attorney of the respondent who had given affidavit. It was admitted by the petitioner that the attorney of the respondent and his learned counsel were not present when the suit was adjourned on 13th June, 1985. In the circumstances, the learned trial Court was convinced that the attorney of the respondent and his learned counsel had not entered appearance on 6th July, 1985 due to genuine mistake regarding the date of hearing. It has been held in Maulvi Abdul Qasim and another v . Haji Abdul Razaq P L D 1957 (W.P.) Lah. 204, Municipal Committee, Rawalpindi through the Secretary, Municipal Committee, Rawalpindi v. Raja Muhammad Sarwar Khan 1968 S C M R 817 and Fazal Ilahi and another v. Muhammad Ismail Khan and others .A I R 1929 Lah. 69 that such a mistake constitutes sufficient cause for the absence of a party. In my opinion, therefore, no illegality or material irregularity was committed D by the learned trial Court in restoring the respondent's suit.

11. It may also be noted here that the Courts are generally liberal in ordering restoration of cases dismissed in default because, as observed in case of Sharafat Ali, cited by learned counsel for the petitioner, the law leans in favour of adjudication of cases on merits rather than their disposal on the basis of technicalities. Some of the other cases in point are Muhammad Haleem and others v. H.H. Muhammad Naim and others P L D 1969 S C

270. Thal Engg. Industries Ltd. v. Bank of Bahawalpur Ltd. and another 1979 S C M R 32 and Mst. Qamar Sultana alias Qamarunnisa v. Abdul Hussain and another P L D 1982 Kar. 355. 12 Resultantly, this civil revision fails It is dismissed in limine A.A Revision dismissed