' Aurangzeb Khan and Mst. Ghulam Sakina, the plaintiffs/respondents, filed a suit against the present petitioners for possession of 63 kanals and 16 marlas of land by pre-emption. The suit was fixed for 18th December, 1972. On that day, no one appeared on behalf of the plaintiff/respondents and, therefore, their suit was dismissed for default under Order IX, rule 8 of the Civil Procedure Code.
2. The respondents, consequently filed an application under Order IX, rule 9, C. P. C. For the restoration of their suit. The application was filed, on 8th January, 1973. It was vehemently resisted by the present petitioners. Keeping in view the controvertial allegation of the parties, the Court framed the following issues :-
(1) Is there any sufficient cause for the restoration of the suit ?
(2) Relief.
3. The restoration application was fixed for parties evidence for 12th March, 1974. On that date complete evidence of the respondent was not present and on their request the case was adjourned to 2nd April, 1974. On the adjourned date viz. 2nd April, 1974 neither the respondents were present nor there. Witnesses were in attendance. Their counsel stated before the Court that he had no instructions from the respondents for that date and, therefore, the restoration application was dismissed for default by the learned Administrative Civil Judge, Muzaffargarh, who was seized of the matter.
4. The respondents preferred an appeal against the order, dated 2nd April, 1974 of the Administrative Civil Judge, Muzaffargarh before the learned District Judge, Muzaffargarh. The learned Appellate Court relying on the contents of a medical certificate in respect of Aurangzeb, one of the respondents, to the effect, that the said respondent remained ill from 2nd April, 1974 to 6th April, 1974 found that the absence of the said respondent who used to prosecute the case on behalf of both the respondents, on 2nd April, 1974 was not wilful. The medical certificate had been appended with the memorandum of appeal. Consequently, the appeal of the respondents was accepted and the order, dated 2nd April, 1974 of the lower Court whereby the restoration application was dismissed for default, was set aside. The case was remanded to the Administrative Civil Judge, with the direction to give opportunity to the appellants to produce evidence in support of their restoration application and then to decide the same in accordance with law.
5. The present petition for Civil Revision is directed against the aforesaid order, dated 22nd October, 1974 of the learned District Judge, Muzaffargarh.
6. It is urged by the petitioners in the instant petition for Civil Revision that the order of the trial Court, dated 2nd April, 1974 dismissing the restoration application of the respondents, was passed under Order XVII, rule 2 of the Code of Civil Procedure as the respondents, themselves, were not present and their counsel had stated that he had no instructions from the respondents.
7. It is further contended that no appeal lies under Order XVII, rule 2 of C. P. C. Dismissing a restoration application for default. Thus, according to the petitioners; the impugned order of the learned District Judge, was without jurisdiction and hence not sustainable in law.
8. On merits, the petitioners maintained that the ground of illness of Aurangzeb. Respondent, was even advanced in the restoration application which too, was dismissed for default and this, in fact, was patently false and the conduct of the respondent was that it did not deserve indulgence of the Court. The restoration application of the respondents was dismissed, on 2nd April, 1974 but they did not take step to move the trial Court for the restoration of the same. They made the application for copy, on 2nd May,. 1974 and filed the appeal on 14th May, 1974.
9. The relevant records have been perused and considered and the learned counsel for the parties have also been heard.
10. It is provided in rule 2, Order XVII of the Code of Civil Procedure that where on any date to which the hearing of the suit is adjourned, the parties or any of them, fails to appear, 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. It is thus evident that where the parties fail to appear on the first date of hearing Order IX will apply while rule'2 of Order XVII is applicable to the adjourned dates of hearing.
By virtue of this rule the procedure in both cases is the same and the remedies are also the same.
In the circumstances of the under consideration case, the restoration application was adjourned to 2nd April, 1974 at the request of the respondents but on that date neither the respondents were present nor their witnesses were present. Their counsel stated that he had not received any instructions from his clients in spite of the fact that he had informed them about that date of hearing. The learned Administrative Civil Judge, in the circumstances, rightly dismissed the restoration application, under Order IX, rule 8, C. P. C. Read with Order XVI, rule 2 ibid. The remedy, in the circumstances, for the respondents was to seek restoration of the application under Order IX, rule 9. As regards maintainability of appeal, it may be observed that by virtue of section 104, Code of Civil Procedure, an appeal lies from the orders enumerated in this section except as otherwise expressly provided in the body of the Code or by any law for the time being in force. As far as the body of the Code is concerned, reference may be made to Order XLIII, rule 1. The relevant provision in this rule is clause (c) which provides that an appeal shall lie from an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit. It is, therefore, to be seen, as to whether the order of dismissal of restoration application, in the circumstances of the under consideration case, amounts to rejection of an application within the meaning of clause (c) of rule 1 and Order XLIII. In the commentary of the Code of Civil Procedure by Aamer Raza Khan, 1974 Edition, it is provided under clause (c) aforesaid that an appeal is competent only where the application for restoration of the dismissed suit, is rejected and that an appeal does not lie against an order dismissing for default, an application under Order IX, rule 9.
Reference has been made to a few judicial precedents from foreign jurisdiction. In Abdul Shakoor v.
Abdur Rasul (1) it has been held that in a case where a special adjournment is granted and the defendant fails to appear in person and his pleader withdraws for want of instructions, it would be a case of double default, insofar as there is default of appearance, and the case would fall under Order XVII, rule 2 of the Code. In Dhuada v. The Punjab Province (2) it was held that rule 8 of Order IX, C. P. C. Applies on the first hearing and all subsequent hearings are governed by Order XVII.
11. Learned counsel for the respondents has urged that an order dismissing the restoration application on account of absence of the respondents and their witnesses, their counsel withdrawing for want of instructions, virtually amounts to an order of rejection against which an appeal is competent. He has placed reliance on Industrial Sales and Service, Karachi and another v. Archifar Opal Laboratories Ltd., Karachi (3) In this case it was held that the decision of the question whether or not an order falls within the connotation of a judgment for the purposes of Letters Patent depends upon the facts and circumstances of each case. It was further held that a decision may be a judgment if it affects the merits and the question between the parties by determining some rights or liability, which can, of course, be preliminary or interlocutory. The cited case provides criteria for the purposes of Letters Patent Appeal as to which order may amount to judgment for the purpose of that appeal. It cannot be stretched for the purposes of clause (c) of rule 1, Order XLIII. Reference has also been made on behalf of the respondents to Federation of Pakistan and 2 others v. Muhammad Hanif (4). In this case a learned Single Judge of this Court was pleased to hold that while deciding the petition for Civil Revision, the Court should decide it on the basis of evidence and other material, already existing on the record.
12. As a result of close and considered analysis of the facts of the under consideration case seen in the light of the provisions of Order
(1) PLD 1963 (W.P.) Kar. 356 (2) PLD 1960 (W.P.) Lab. 786
(3) p L D 1969 Kar. 418 (4) 1981 CLC 130 XLIII, rule 1 (c) of the Code of Civil Procedure and keeping in view the' judicial precedents cited above, I am of the confirmed view that . An order whereby a restoration application is dismissed for default under Order IX, rule 8 Civil Procedure Code read with Older XVII, rule 2 ibid, is not B appealable and such an order does not amount to rejection of the application filed under Order IX, rule 9, C. P. C. Within the meanings of clause (c) of rule 1 of Order XLII1. The remedy against an order dismissing for default, a restoration application is through another restoration application and not by way an appeal.
13. Even on merits, the plaintiffs/respondents are not entitled to any indulgence by the Court inasmuch as, firstly, their pre-emption suit, when it was fixed for evidence, was dismissed for default, on account of their absence and subsequently they failed to produce evidence on the date, originally fixed for evidence for the restoration application. And even on the adjourned date, neither the plaintiffs/respondents appeared nor their evidence was present. Their counsel stated that he had not received any instructions from them, although he had informed them about the C date of hearing. The so-called medical certificate was not produced before the trial Court when their restoration application was dismissed for default. The respondents did not care to file restoration application for the restoration of their application. They applied for obtaining the copy of the order, dated 2nd April, 1974 of the Administrative Civil Judge very late. The appeal was filed, on 14th May, 1974 and the medical certificate was enclosed with this appeal.
14. In the light of what has gone above, it is concluded that the impugned order, dated 22nd October, 1974 of the learned District Judge, Muzaffargarh, is not sustainable. The petition for Civil Revision is, therefore, accepted and the impugned order dated 22nd October, 1974 passed by the learned District Judge, is set aside, No order is, however, made as to costs.