' ALI SAIN DINO METLO, J.---Heard arguments and perused record.
2. Suit No, 1223/1996, filed by the respondent No,1 against the appellant and the respondent No,2, for declaration, injunction and compensation in respect of a shop situated in the shopping arcade of respondent No, l's hotel, Marriot Hotel, Karachi, was dismissed for non-prosecution on 31-5-2005 when it was fixed for final arguments and nobody appeared from the side of the parties.
3. On 12-12-2005 Advocate for the respondent No.1 moved two applications one for condoning delay and the other for restoring the suit. Both the applications were supported by personal affidavit of the Advocate to the effect that he was held up in the Federal Service Tribunal, Karachi Bench where he had a case and when at about 11-00 a.m. He reached in Court the Reader informed him that the hearing had been discharged and that he had come to know about the dismissal of suit for the first time on 9-12-2005 when the office was contacted for the fixation of date for arguments.
4. In the counter affidavit one Pervez Hassan, proprietor of the appellant, without taking any specific plea, controverted the claim of the learned counsel in general terms, saying that the plea had been taken only to cover the delay in moving the application.
5. The learned Single Judge, relying upon the precedents of Allah Rakha v. Muhammad Yousif (PLD 1991 SC 601) and Muhammad Haleem and others v. H.H. Muhammad Naeem and others (PLD 1969 SC 270), restored the suit on 5-4-2007, holding that dismissal the suit in default, when it was fixed for final arguments, was unwarranted.
6. Relying upon the precedents of Manager, Jammu & Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678), Qaim Ali Khan v. Muhammad Siddique (1987 SCM R 733) and Abdul Latif v. Aqeel Ahmed (2006 SCM R 789) and Rule 1 of Order XX of the Code of Civil Procedure, 1908 (C.P.C.) (as amended by Act 14 of 1994), learned counsel for the appellant contended that on 31-5-2005 the suit 'was fixed for final arguments, which was a date of hearing within the meaning of Order IX Rule 3 read with Rule 2 of Order XVII, C.P.C. And, therefore, according to him, it was rightly dismissed due to nonappearance of both the parties. He further contended that the respondent had faked to show sufficient cause for non-appearance on 31-5-2005 as well as for the condonation of delay in moving the application for the restoration of suit.
7. In this regard, it may be mentioned that the paramount consideration prevailing upon the learned Single Judge to restore the suit seems to be the consistent policy of our Courts to decide cases on merits. II is true that in view of the observations of the Supreme Court made in the above cases and the statutory provision relied upon by the learned counsel for the appellant and the case of Syed Qadar Dad and others v. Muhammad Afzal and others (PLD 1997 SC 859), arguments are a part of hearing of a suit, which (right of hearing) cannot be denied to a party. However, this does not mean that the suit should necessarily be dismissed for non-prosecution at such stage.
8. On account of big pendency and many other factors, many years are consumed in making a suit ripe for decision on merits and it will not be proper to dismiss a suit when it becomes ripe for decision on merits. In the present case, the suit was filed on 27-11-1996, issues were framed on 18- 8-1998 and recording of evidence was concluded on 28-1-2005. Thus, more than eight years were consumed in making the suit ripe for decision on merits. After completion of evidence, the suit was fixed for final arguments for the first time on 5-4-2005, but the honourable Judge, who had recorded the evidence, refused himself and the suit was again fixed for final arguments on 31-5- 2005 before another honourable Judge, who dismissed it for non-prosecution due to absence of both the parties.
9. Indeed, dismissal of suit for non-prosecution at such stage was wholly unwarranted, particularly when nobody had appeared from the side of defendants also. The entire labour and expense of eight years was allowed to go waste. The only proper course, in such circumstances, was either to fix another date for hearing the final arguments or to decide the suit on merits on the basis of available evidence, produced by both the parties, without hearing the arguments. The learned Single Judge has, therefore, done a right thing in restoring the suit for its decision on merits. He has saved time, expense and labour of eight years from going waste. In such circumstances, no exception can be taken to the impugned order, particularly when the respondent's Advocate, by filing his personal affidavit, had also shown sufficient cause for his absence at the time of the dismissal of the suit as well as for the condonation of delay in moving application for its restoration.
10. In his personal affidavit, learned counsel for the respondent No,1 deposed that he was held up in the Federal Services Tribunal, Karachi Bench, in a case and when at 11-00 a.m. He reached the Court the Reader informed him that the hearing of the suit had been discharged. Neither Advocate for the appellant nor anybody else claimed that the Reader informed them otherwise. Indeed, it was not the case of the appellant that anybody from its side was informed otherwise. In such circumstances, there was no reason to disbelieve the version of the learned counsel.
11. Rule 3 of Order IX, C.P.C. Provides that where neither party appears on the first date of hearing the Court may dismiss the suit. The use of word 'may' indicates that the dismissal is not mandatory and the Court may, instead of dismissing the suit, adjourn its hearing to some other date so as to provide another chance of appearance to the parties. As against this, Rule 8 of Order IX, C.P.C.
Provides that where the defendant appears and the plaintiff does not appear, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. The use of word 'shall' indicates that the dismissal is imperative. However, the imperativeness seems to be only for the first date of hearing, as Rule 2 of Order XVII, C.P.C. Provides that where the parties or any of them fail to appear on an adjourned date of hearing, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. Thus, due to nonappearance of plaintiff on an adjourned date of hearing, the Court may dismiss the suit or make such other order as it thinks fit, even where the defendant appears and does not admit the claim.
12. Thus, the legal position which emerges is that where neither party appears on an adjourned date of hearing, the Court may, in exercise of its discretion, either dismiss the suit or make such other order as it thinks fit. Judicial discretion should always be exercised judiciously for doing substantial justice. A- suit should not, therefore, be dismissed mechanically. As a matter of policy, our Courts have always preferred to decide matters on merits. In case there is material available on record for giving decision on merits, dismissal should be avoided to the utmost. In such a case, the Court may either adjourn the hearing or decide the suit on merits forthwith.
13. Notwithstanding the fact that under section 15 of the Code of Civil Procedure (Amendment)
Ordinance, 1980, all interlocutory orders of a Single Judge in exercise of original civil jurisdiction have been made appeal able before a Division Bench, the Court, in keeping with the policy of preferring to decide matters on merits, should be slow in interfering with the orders of restoration. It may be noted that under the Code of Civil Procedure, 1908, even order of restoring a suit dismissed under Rule 8 of Order IX, C.P.C., not to talk of Rule 3 of Order IX C.P.C., is not appeal-able. In the present case, the suit was dismissed under Rule 3 of Order IX, C.P.C. After eight years, when it had just become ripe for decision on merits. In such circumstances, the impugned order of restoring the suit for decision on merits does not call for any interference. It was for these reasons that the appeal, being merit less, was dismissed by a short order passed on 28-8-2008.