1. ' This revision petition arises out of the judgment and order of Sub-Judge, Mirpur, dated 14-2-1979 whereby the application for restoration of suit, was rejected.
2. ' Mst. Razia Begum petitioner filed a suit for perpetual injunction in the Court of Sub-Judge, Mirpur on 16-1-1978 to the effect that the use and occupation of Quarter No, D-18 situate in WAPDA Colony, Mirpur, may not be interfered. The case was fixed for 28-11-1978 when on account of the absence of the plaintiff-petitioner and her counsel, the suit was dismissed.
3. ' The learned counsel for the petitioner moved an application for the restoration of the suit soon after its dismissal on the same date. It was stated in the application that the counsel of the petitioner was present in the premises of the Court at the time the case was called, however, the case was dismissed for non-prosecution, hastely, during early hours of the Court. On objection of defendant-respondent an issue was framed with respect to sufficient cause of the absence of the plaintiff-petitioner, on 23-1-1979 and the case was adjourned to 14-2-1979 for evidence. On this date, the counsel for the parties were present but on account of the absence of evidence of the petitioner, the case was adjourned to 19-3-1979. Nevertheless, is the second breath, the application was disposed of, on merits, in consequence of which, the same was dismissed. The petitioner challenged the impugned order dated 14-2-1979 in the present revision petition.
4. Qazi Abdul Ghafoor learned counsel for the respondent raised a preliminary objection that under Order LXIII, rule 1, clause (c), C. P. C. The order of rejection of application for restoration was appealable and as such, the revision petition was not maintainable. The preliminary objection raised by the learned counsel could carry weight in the eye of law provided the trial Court acted in a judicial manner without resorting to pass the impugned order summarily, without recording the evidence or reasons. It could not be denied that despite the fact that an issue was framed and the petition was directed to lead evidence in support of the issue and also that the case was adjourned to 19.3-1979 for the evidence of the petitioner, to application was rejected by the trial Court. This was a patent illegality and not only irregularity in the exercise of the jurisdiction of the trial Court. In a case, where the jurisdiction was, prima facie, exercised in an illegal manner, in consequence, of which, injustice was done to a party, it could hardly be suggested that the case was decided on merits and as such, the order under revision was appealable. Therefore, I am of the view that in the aforesaid background and in consideration of the impugned order, the trial Court failed to exercise the jurisdiction in a judicial manner, hence the revision petition was maintainable in the present case.
5. The next point raised by the learned counsel, Qazi Abdul Ghafoor, for the respondent was that no sufficient cause was shown for restoration of the suit and as such, the trial Court was justified to reject the application for the restoration of the suit. He relied on A I K 1933 Lab.
169. Before 1 pass on the merit relating to the point at issue, I would like to mention that the citation referred by the learned counsel was not of any help to his case. In the above-cited case, the trial Court which dismissed the suit for non-prosecution, on filing application for the restoration of the suit, allowed the plaintiff-petitioner to produce evidence to show cause for non-appearance. The evidence was led by the petitioner-plaintiff. However, the trial Court was not satisfied with the cause shown therein as a result of which the application was rejected. The plaintiff-petitioner moved a Review Petition under Order XLVIII, rule 1, C. P. C. In the trial Court whereby the trial Court accepted the Review Petition and restored the suit. When the matter went in the High Court, the order of the trial Court was attacked on the ground that once the trial Court came to the conclusion that the material was insufficient to show-cause for non-appearance, on the same evidence and circumstance, the trial Court could not set aside its findings in review. The proposition in the present case was otherwise. Here, the case was called during the early hours of the morning. The time of calling of the case was not given by the trial Court. There was no mention that the trial Court waited for sometime for the presence of the party or her counsel and dismissed the suit in default. The perusal of the application for restoration shows that it was moved immediately after dismissal of the suit. The learned counsel for the petitioner filed an affidavit in support of the contents of the application for the restoration of the suit. Even if no affidavit was filed the statement made by the counsel at the bar, was sufficient to believe that the suit was dismissed under the circumstances alleged by the petitioner. Qazi Abdul Ghafoor learned counsel for the respondent during the course of argument, admitted that the suit was dismissed during the early hours and also that the application was moved by the learned counsel for the petitioner thereafter immediately. In presence of the material on the record, there was hardly any justification to uphold the order of the trial Court. It was in the interest of justice to allow the parties to contest their rights providing sufficient opportunities, under law, to them. It appears that the proceeding of dismissal was carried out in haste. Such a proceeding could seldom be appreciated in the interest of justice.
6. ' Mr. Muhammad Akram Khan learned counsel for the petitioner, in support of his contention relied on PLD 1966 Lah.
356. Justice Gul Muhammad who delivered the judgment observed as under :- "The order of dismissal does not show that the learned Civil. Judge cared to wait for the plaintiff's counsel to appear. The exact hour of dismissal is not indicated on the file. It seems that no sooner, the case was called, then it was dismissed because nobody immediately turned up to appear in response to the call.
7. ' As pointed in rule 5 ibid. It is impossible to expect a man to remain in constant attendance for the whole of the time during which the Court is sitting."
8. ' In the aforesaid case, Punjab and Kashmir Bank Ltd. Filed a suit for recovery of Rs, 32,952 against defendant-respondent. On the date of hearing, the case was fixed for the evidence of the plaintiff but when the case was called neither party nor the counsel was present. In the application for the restoration of the suit, the cause of absence was shown that the learned counsel was occupied in another Court at that time. The evidence was led but the trial Court was not satisfied with the cause shown therein. On revision before the High Court, the learned Judge observed that in view of the circumstances and reasons advanced for non-appearance were sufficient for the restoration of the suit. As a result of the observation of the learned Judge, the order of rejection of application for restoration was set aside and the suit was restored to the file of the trial Court. This case applies, on all fours, to the present case.
9. ' On this view of the matter, I am satisfied that in the present case, there was hardly any negligence or absence on the part of the counsel for the petitioner. At the most, it was a case of small delay in reaching the Court when the case was called in. Such a delay was natural keeping in view the distance between the Court and the place where the learned counsel for the petitioner holds his office. Moreover, I am of the view that the Courts should never hurry in dismissing the suits in default of appearance unless such an action was desired in the interests of justice. Therefore, the revision petition is accepted and both the orders of the trial Court are set aside and the suit of the plaintiff-petitioner is restored to the file of Sub-Judge, Mirpur. The trial Court shall summon the parties accordingly.