' CHAUDHARY MUHAMMAD TAJ, J.--- This appeal, by leave, is directed against the order passed by the High Court on 23-9-2003 in a revision petition whereby the suit dismissed in default was held to be restored.
2. The facts are that a suit filed on behalf of the plaintiff-respondent was pending in the Court of Civil Judge, Rawalakot which was dismissed in default. An application for its restoration moved on the same day was dismissed by the trial Court. However, a revision petition filed with: the High Court was accepted and the suit was restored. This order was challenged through the instant appeal.
3. Mr. Abdul Rashid Abbasi, the learned counsel representing the appellant, raised following points in support of the appeal:--
(i) That the plaintiff-respondent failed to show sufficient cause through any evidence as such the suit could not be restored particularly in the revisional jurisdiction;
(ii) that the evidence on sufficient cause was produced before the High Court which could not be brought on record. It was added that the appellants were not provided opportunity to rebut the aforesaid evidence; and
(iii) that the restoration of the suit was made on the document, showing counsel for the respondent occupied in a case before the District Judge. The fact of matter is that the District Judge was on leave, therefore, the plea was false. The learned counsel referred to the following authorities in support of his assertions:--
(1) Akhtar Hussain v. Settlement Commissioner, Lahore Division Lahore and others PLD 1966 (W.P.)
Lah. 567;
(2) Pakistan Day Memorial Committee and another v. Mian Abdul Khaliq & Co. Civil Engineers and Contractors 1984 CLC 3332 (Lahore);
(3) Muhammad Younas and 7 others v. Auqaf Department 2000 M LD 1668;
(4) Kh. Ghulam Qadir and another v. Muhammad Sharif and 11 others 2000 M LD 2047;
(5) AJ&K Government and 10 others v. Abdul Rashid and 5 others 2002 CLC 1662; and
(6) Unreported judgment of this Court titled Mahmood-ur-Rehman Mahmood v. Qazi Aman Ullah and another Civil Appeal No,45 of 2004, decided on 18-3-2005.
4. Mr. Imdad Ali Mallick, who appeared on behalf of the respondent, while controverting the arguments addressed on behalf of the appellants, argued in the following manner:--
(i) That the plaintiff-respondent was out of the country and the suit was prosecuted by the counsel representing him who was occupied in a case before the District Judge. Meanwhile the case was called and was dismissed in default. The counsel immediately appeared before the Court and prayed for restoration on the aforesaid ground. The learned Judge asked him to file an application for its restoration which was readily drafted there and placed before the Court without getting the copies of the order and the counsel's engagement before the other Court. This application continued for many months and thereafter it was dismissed as such necessary documents were placed before the High Court in a revision petition which was accepted;
(ii) that it was not denied in the objection filed by the appellants that the counsel representing the respondent was not occupied before the District Judge;
(iii) that the learned trial Judge did not wait for few minutes and dismissed the suit for non- prosecution though sufficient Court time was left; and
(iv) that the order passed by the High Court does not suffer from any illegality as such warrants no interference by this Court. The learned counsel referred to the following authorities in support of his assertions:--
(1) Ashraf Bibi and others v. Lahore Municipal Corporation and others 1992 CLC 2350;
(2) Abdul Ghani v. Muhammad Shafi 1990 CLC 1472; and
(3) Unreported cases titled Muhammad Ameer Shah v. Muhammad Azam and others Civil Appeal No,6 of 2000 decided on 14-1-2000 and Azad Government v. Sales Tax Appellate Tribunal, AJ&K and others Civil Miscellaneous No,26 of 2005 decided on 5-4-2005.
5. We have heard the learned counsel for the parties and also gone through the record. It is not disputed between the parties that application for restoration of the suit was made by the learned counsel for the plaintiff-respondent on the same day who has shown in his application that he was busy in the Court of some other senior Judge, therefore, could not appear at the time the case was called. The claim of the appellants is that he has failed to disclose a sufficient cause for his nonappearance before the trial Court and evidence to this effect was placed before the High Court while hearing the revision petition where the appellants were not provided the opportunity to rebut it apart from the fact that the document was false. The counsel for the respondent submitted that he appeared in the trial Court soon after dismissal of the suit and requested the Court for its restoration. The learned Judge asked him to file application which he immediately drafted and could not secure the copy of the order along with the proof of his engagement before other Court, under the impression that the Court would restore the suit on the simple application.
6. A suit dismissed in default under Order IX, rule 8 C.P.C. Can be restored after setting aside the dismissal if the plaintiff A satisfies the Court that there was sufficient cause for his nonappearance when the suit was called for hearing. The main objection raised by the learned counsel for the appellants against the restoration made by the High Court is that he failed to place anything on record before the trial Court which may show a sufficient cause. The learned counsel has relied upon the law where similar view was expressed. The learned counsel appearing from the opposite side has placed reliance on certain judgments including those of this Court that the Court should wait till the final hours of the Court's time and should not dismiss the suit in hurry.
7. After surveying the case-law referred to by the learned counsel for the parties particularly the authorities of this Court, we are of the view that it is no doubt a requirement of law that for restoration of a suit sufficient cause has to be shown but the Court though can dismiss the suit in default when the same is called for hearing but the Court should keep in mind that if a controversy cannot be resolved without evidence it may receive the evidence from the respective parties and then decide the same in accordance with law. An issue can be framed if the Court so requires.
Reference may be made to a case reported as Muhammad Hussain v. Mian Iqbal Salah-ud-Din 1986 CLC 1441 where it was held as under:- "(8) 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 of restoration of the 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."
' In another case titled Sain Akhtar v. Muhammad Yousaf and 2 others 1990 M LD 2135 similar view was expressed in the following words:-- "... Rule 9 uses the words 'satisfies' rule 19 employs the terms proved. In either case, defaulting party seeking restoration of suit or appeal is obliged to satisfy/prove that it was prevented by sufficient cause from appearing when the case was called on for hearing by the Court. The real question is, how is the defaulting party to satisfy or prove the 'sufficient cause' to explain its nonappearance.
Obviously, in case of dispute between the contesting parties, it can be only by leading evidence, either viva voce or by affidavits. Ordinary rule is that evidence is recorded viva voce in Court but affidavit-evidence is also permissible with the permission of the Court as in Order XIX, Civil P.C., or by the agreement of the parties. In any case taking of evidence is an essential requirement for deciding on sufficiency of cause to explain the default in appearance and in its absence, the point at issue cannot be satisfactorily decided by the Court and this is what I had earlier said in my two decision. Further, when I said that an issue may be framed, I had in mind that the 'issue' puts the party on guard as to what it had to prove and bring evidence on. After having re-examined the whole issue afresh, I feel convinced that rule about record of evidence was correct."
8. In the present case the respondent filed an application and stated that he was busy in some other Court. The revisional Court restored, the suit on the aforesaid ground which is seriously opposed by the other side. We, in the circumstances of the case, are of the view that the controversy may be resolved by the trial Court on the basis of evidence. We also avoid to make any comment lest it may prejudice the case of either party. We would like to remand the matter to the trial Court who shall decide the same after providing the opportunity to the parties for producing the evidence in this regard and thereafter decide the application filed for restoration of the suit. Therefore, the appeal is accepted and the case is remanded to the trial Court who shall proceed as indicated above.