P (PLP)

Civil Procedure Code (V of 1908), O. IX. r. 9‑Plaintiff herd engaged Mukhtar, Mukhtar Qanuni and advocate‑Absence of all three be explained, otherwise suit should not be restored. Not only the Mukhtar of the plaintiff but her Advocate and Mukhtar Qanuni were absent on two consecutive hearings i.e., 9th and 10th of August 1949. It was, therefore, incumbent on the plaintiff to explain their absence. This not being done, the petition for restoration of the suit ought to have been dismissed. A. I. R. 1929 Lah. 148 and 117 I. C. referred to. ORDER.‑The suit of the plaintiff was dismissed under Order IX, rule 8 by the High Court in revision and a petition for its restoration under Order IX rule 9 was made to the Court of first instance. The Court accepted that petition and restored the suit. There is a revision petition against that order. The allegations of the plaintiff for the restoration of the suit were that her Mukhtar was taken ill of renal colic and could not attend the Court. This allegation was accepted by the Court and the suit was restored. The contention of the learned counsel for the petitioner is that as the plaintiff had engaged two legal practitioners in the original Court on her behalf consequently it was not enough for her to 'give a reasonable excuse for the absence of her Mukhtar. Her counsel's absence must also had been satisfactorily explained. In the application under Order XI rule 9 there was no mention even of the cause of the non‑appearance of her counsel on two consecutive hearings before the Court. The Court, therefore, was wrong to accept the petition on the simple ground that the absence of the Mukhtar of the plaintiff was established. The Court ought to have called upon the plaintiffs to explain the absence of her two counsel satisfactorily. See 117 I. C. 382 and A. I. R. 1929 Lah.

148. It was held there that when a patty has a recognised agent or a Pleader for the purpose of appearance and the suit is dismissed in default it is for him to show why the Pleader or Agent was not present. The mere fact that the person chosen by him is negligent is not a ground for restoring the suit, though it may be a ground for a suit for damages against the Agent or his Pleader. In this case the Mukhtar had engaged Muhammad Ramzan a Mukhtar Qanuni who is a legal Practitioner in this State on 16th of February 1947 and Mr. Ummar Shad Advocate on 13th June, 1948. Not only the Mukhtar of the plaintiff but her Advocate and Mukhtar Qanuni were absent on two consecutive hearings i.e., 9th and 10th of August 1949. It was, therefore incumbent on the plaintiff to explain their absence. This not being done, the petition for restoration of the suit ought to have been dismissed. With these observations I accept the petition for revision ex‑parte as the respondent has not put in his appearance and setting aside the order of the trial Court, restoring the original suit dismiss the petition under Order IX rule 9 for its restoration. The petitioner shall be entitled to his costs in the Court. K. M. A. Petition accepted.