It will be a sheer formality to recount in detail the facts leading to this revisional application to challenge concurring orders of two Courts below rejecting the application of the petitioners for restoration of suit dismissed in default under Order IX, rule 8, Civil Procedure Code. Suffice it to say that' the suit was dismissed for non-appearance of the petitioners within half an hour of the start of Court work on the date fixed for submission of amended written statement by the respondents. It was rightly contended on the side of the petitioners that the date for filing of written statement or amended writtenstatement or a replication was not the date of hearing within the meaning of Order TX, rule 8, Civil Procedure Code. Order dismissing the suit was without jurisdiction and a nullity in law. Learned Civil Judge was obliged to restore the suit for hearing whether or not the petitioners had allegedly failed to establish "sufficient cause" for their non-appearance. This argument which was not controverted on the side of the respondent though not conceded explicitly is borne out by a couple of authorities already noted in the admitting order viz. Ghulam Sakeena v. Karim Bakhsh (PLD 1970 Lah. 413), Rahim Bakhsh v. Gul Muhammad and others (P L-D 1971 Lah. 746 Additionally, it was also improper on the of learned Civil Judge to have thrown out the suit in default during early hours of the day. Litigant should be awaited reasonably for appearance so as to ensure decisions of cases on merits for which purpose alone the Courts exist. Courts are not to act in the fashion of disciplinary institutions and lay traps for unwary litigants. Order dismissing the application for restoration of the suit amounted to non-exercise of jurisdiction by the Courts below vested in them in law and the case was covered by clause (b) of section 115, Civil Procedure Code.
2. Petition is accepted. Order of learned Civil Judge dismissing the application under Order IX, rule 8, Civil Procedure Code as well as the order on appeal affirming that of learned Civil Judge are set aside. The case is remitted to learned Civil Judge, Pindi C3heb, District Attock for disposal in accordance with law. Parties shall be issued notices for appearance for a date during second week of January, 1981.
M. Y. M.Petition. Accepted.