P L D 1957 (W (PLP)

KAIKAUS, J.‑

Revision Applications Nos. 89 and 90 of 1956 arise out of two suits for pre‑emption relating to the same sale. One Umar Din having sold some land in favour of Muhammad Ramzan, two suits were filed to pre‑empt the sale, one by the present petitioner Abdur Rahman, and another by Allah Ditta respondent. As required by law, the plaintiff in each case was joined as a defendant in the other. Both the cases were fixed for evidence on the 7th of February 1955, when Abdur Rahman petitioner failed to appear and his suit was dismissed under order IX rule

8. Civil P. C. In consequence of this dismissal his name was also deleted ‑from the list of defendants in the other suit. He put in two applications, one for the restora tion of his suit and the other for the restoration of his name as a defendant in the other suit. Both applications were dismissed by the trial Court and these orders were confirmed on appeal by the learned District Judge. The two revision petitions mentioned above have been filed by Abdur Rahman challenging the orders made on his two applications. This judgment will deal with both the revision petitions, but in fact only the question of restoration of the suit filed by the petitioner has to be determined for the order in the other application has, to follow auto matically. These suits were pending in the Court of Civil Judge of Daska. It may be explained here that at the relevant time the Senior Civil Judge, Sialkot, used to act as Civil Judge, Daska, for ten days in a month. The case of the petitioner in the application for restoration was that on the 7th of February 1955 (the date on which the suit was dismissed in default) he had to submit his nomination papers as a candidate for membership of the District Board, Sialkot, to the Returning Officer at Sialkot. His counsel too was a candidate and had to submit his nomination papers on the same day After putting in his nomination papers, the petitioner had gone by lorry from Sialkot to Daska to attend to his case and had reached there at about one O'clock, but by that time his suit had already been dismissed for default. He produced in support of his case two witnesses who deposed to the fact that the petitioner had in fact gone by a lorry from Sialkot to Daska on the 7th of February 1955, and had reached there at about one o'clock. The petitioner also made his own statement in the witness‑box. On behalf of the respondent, two witnesses were produced, one of whom stated that the petitioner had remained in the office of the Deputy Com missioner, Sialkot, in connection with the filing of his nomination papers up to 1 p.m. The witness had himself remained there up to 2 p.m., but explained on a question by Court that he had come away at about 1 p.m,, and did not know of the movements of the petitioner after that. The other witness stated that the petitioner had remained in the office of the Deputy Commissioner till 4 p.m. The learned Senior Civil Judge, Gujranwala, (who was then acting as Civil Judge, Daska) who heard the application for restoration, found the witnesses produced by the peti tioner to be interested and he regarded the statement of the second witness for respondent a sufficient rebuttal of such interested evidence. The learned Senior Civil judge also observed that there was sufficient time for the petitioner to engage another counsel for appearing on his behalf at Daska on the 7th of February 1955, if his own counsel was unable to appear. He was further of the opinion that the petitioner could have filed his nomination papers at Sialkot and could have reached Daska in time to be present when the case was called. The fact that he made no application for restoration on that day and made such application only about a month later, was regarded by the learned judge as good evidence of the fact that he had not in fact reached Daska that day. On appeal the learned District judge agreed with the Senior Civil judge in his estimate of the witnesses produced by the petitioner. He found that there was no satisfactory evidence to show that the petitioner had in fact reached Daska Court at 1 p.m., on the 7th of February 1955 and this finding he regarded sufficient for the dismissal of the appeal. The learned judge observed too that the fact that the petitioner had not put in the application for restoration on the same day also supported this inference. On going through the record, I am of the opinion, in the first place, that the learned District Judge has not considered all the relevant circumstances in coming to a conclusion that the petitioner had not reached Daska at 1 p.m. and, secondly, that even if this conclusion be true, it does not necessarily entail the dismissal of the application. As regards the first point, the trial Court as well as the learned District Judge have drawn an adverse inference from the fact that no application had been filed on that very day, but it has not been taken into consideration that 7th February was the last day of the stay of the Senior Civil Judge at Daska. As already stated, there is no Civil judge permanently posted at Daska. It is a civil judge from Sialkot or Gujranwala who visits Daska for some days in a month. At the time when the suit was dismissed in default, it was the Senior Civil Judge, Sialkot, who was visiting Daska for some days in a month. At the time when the application for restoration was put in it was the Senior Civil Judge, Gujranwala, who was visiting Daska. It is also to be kept in mind that although, there may be some lawyers practising at, Daska, litigants do take counsel from Sialkot to Daska even in cases of no great value. In this case, the petitioner's counsel was one from Sialkot. The petitioner has stated as a witness that he came back from Daska and informed his counsel, and his counsel said that when the Senior Civil judge comes to Daska in the next month an application will be put in. The petitioner has also stated as a witness that all the cases for that day had been finished by the Court when he reached the Court‑room on the 7th February and there is no rebuttal of this evidence on the record. Had the learned District judge considered that the petitioner's counsel belonged to Sialkot, that this was a last day of the stay of the Senior Civil judge at Daska, and that the Court had already finished its work at about I p.m., an inference adverse to the petitioner from the failure to put in an application on the same day may not have been drawn. I am not disagreeing with the learned District judge in so far as he does not believe the witnesses of the petitioner. Those witnesses may not be making correct statements. That would not however necessarily show that the petitioner had not reached Daska on that day. In the circumstances, it would be difficult for a petitioner to procure witnesses who will depose to his going from Daska to Sialkot. and although the witnesses are not believed, there will be no bar to acceptance of the statement of the petitioner himself. In such cases we do accept the statements of the petitioner themselves unless there is something to show that the statement is not correct. Of course, if the statement of one of the witnesses, of the respondent, who said that the petitioner had stated at Sialkot upto 4 o'clock, was accepted, that may have been a good reason for disbelieving the petitioner, but I do not find the learned District judge believing that witness. There is no reference in this judgment to the witnesses produed by the respondent. While I am not satisfied that the petitioner had not reached Daska at 1 o'clock. I do not want to put this case on the ground that he had so reached. The only finding of the learned District judge on which he based his decision is that the petitioner did not reach Daska at 1 p.m. Let me assume that this finding is correct. Does that settle the question that arises ? It does not. Admittedly the petitioner had to submit his nomination papers on the 7th of February. There was nothing on the record to show that 7th. February was not the only day for submitting nomination papers, but I have satisfied myself by reference to the Government Gazette that it was the only day. I regard the necessity of filing a nomination paper a sufficient cause for non‑appearance and I do not think there can be two opinions about this. Daska is at a distance of 22 miles from Sialkot by road. After submitting his nomination papers it may take the petitioner two‑three hours to reach Daska because a lorry may not be at once available. If he reached Daska sometime after' 1 p.m. but the case had already been called, was there not sufficient reason for non‑appearance at the time when the case was called ? If at that time there was sufficient cause, then, truly speak ing, his subsequent conduct is not relevant. The simple question is whether at the time when the case was called he may not have been prevented from appearing in Daska on account of the filing of his nomination paper. I have already stated above that the statement of the petitioner in the witness‑box that the work of the Court had finished at about 1 p.m. stands unrebutted. If the case had been called before 1 o'clock, then there would be sufficient reason for non‑appearance so far as the petitioner is con cerned. I would also add that the petitioner may well have reached not long after 1 p.m. although by that time the Court may have risen for the day after having finished the day's work. There is nothing on the record to satisfy me that he did not go to Daska that day and there is his own statement that he did. It has been urged before me on behalf of the respon dent that the petitioner knew that the 7th of February was the date fixed and he should have made arrangements for appearance. One reply to this argument is that if there be sufficient cause for the personal non‑appearance of the plaintiff that is a good ground for restoration of the suit even though it may have been possible for a plaintiff to make arrangement for appearance for appearance though some body else for no party even is under any obligation to engage counsel. I would restore a suit in a case where there was sufficient cause for personal of non appearance of a party even though a counsel tries to reach Court at the time of hearing but due to an accident is prevented from doing so and suppose that he counsel rails to put in appearance without good reasons, he suit should be restored for there is sufficient cause on the party's non‑appearance even though the counsel out have put in appearance. The party cannot in such a cause it had engaged counsel. It may not have done so. So in the present case even if counsel for the defendant could have been present but did not appear, the suit should be restored if judges reach the conclusion that there was sufficient cause for the plaintiff not appearing. Such sufficient cause there was for it is not the intention of the law to prevent parties from exercising their civic rights. The second reply to this argument is that the plaintiff had made a serious effort that his counsel should appear and had failed. I have said above that he had a counsel from Sialkot. In fact, he had two counsels, both from Sialkot. He has stated in the witness‑box that one of his counsel could not appear as he himself was a candidate in the District Board Election, and the other said that he had a Session's Case for that day and would not be able to appear. It cannot be said that the plaintiff was under an obligation to engage a third counsel. While I do not say that the plaintiff was very careful, it is difficult to record any positive finding of negligence on his part. He had applied on the 5th of February 1955 for a change of date on the ground that 7th of February had been fixed for the submitting of nomination papers. It is not clear how this application was dealt with. There is on this application only an order of the 7th of February 1955, dismissing it in the absence of the plaintiff. It may be that it had just been kept on the record to be decided on the 7th. In determining whether a party was negligent in respect of his appearance it is not improper to take into considera tion the stage at which the case was and whether the party had taken all proper steps necessary for the prosecution of his case. The case was fixed for evidence on the date in dispute. The petitioner was claiming the right of pre emption on basis of being a proprietor in the estate and he had summoned the Patwari for proof of that fact. There was little else he was to do for proof of his right. In an application for restoration of a suit dismissed in default, we are not to be very strict. It is not necessary that a high degree of care must have been exercised before a suit is restored. These two applications are accepted and the orders of the lower Courts are set aside. The suit filed by the petitioner shall be restored and in the other suit his name shall be restored as a defendant. No order as to costs. Z.A.S./A.H. Applications accepted.