' A suit for pre-emption was filed by Mst. Noor Jahan, petitioner, before Civil Judge, Muzaffargarh. In written statement filed by the respondent a challenge was thrown that the suit was not genuinely signed by the petitioner In view of this objection the learned trial Judge on 16th July, 1980 directed that the petitioner shall appear on 4th September, 1980 for making a statement. On 4th September, 1980 the petitioner did not appear however, her counsel was present but no cause of her absence was shown much less to the satisfaction of the Court. The learned trial Court, therefore, dismissed the suit under sub-rule (2) of rule 4 of Order X, C.P.C. For her non-appearance. Against this order an appeal was preferred which, too, was dismissed by the Additional District Judge vide order, dated 17th May, 1981 observing that the order of the Civil Judge, dated 4th September, 1980 dismissed the suit being not a "judgment" appealable rather it was an order otherwise passed under Order X, rule 4(2), C.P.C. By saying so, learned Additional District Judge perhaps means that the said order was covered by the phrase "or make such order in relation to the suit as it thinks fit" used in the said rule.
2. Learned counsel appearing on behalf of the petitioner argues that the order of the trial Court, dated 4th September, 1980 has the effect of deciding the suit finally", therefore, it was a "judgment" for all intents and purposes and was thus appealable, and that it could not be interpreted as an order otherwise passed under Order X, rule 4 (2), C.P.C. As has been held by the Additional District Judge.
3. Learned counsel appearing for the respondent replies that the order dismissing the suit for non- appearance of the petitioner was in fact passed by the trial Court as envisaged under rule 12 and rule 8 of Order IX, C.P.C. Read with rule 4 (2) of Order X, C.P.C. For facility of reference, relevant rules are reproduced below :- "Order IX, rule 8.-Where the defendant appears and the plaintiff does not appear when the suit is called on for bearing the Court shall make an order that the suit -be dismissed, unless the defendant admit the claim, or part thereof in which case the Court shall pass a decree against the defendant upon such admission and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the reminder."
"Order IX, rule 12.-Where a plaintiff or defendant, who has been order to appear in person, does not appear in person, or show sufficient cause to the satisfaction of the Court for failing so to appear he shall be subject to all the provisions of the foregoing rules applicable to plaintiffs and defendants, respectively, who do not appear."
"Order X, rule 4 (2). -If such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit."
' It is clear from the language of rule 12 that if a party without showing sufficient cause to the satisfaction of the Court" fails to appear in Court on the appointed date then in that situation the party absenting shall be subject to all the provisions of the foregoing rules applicale to the plaintiff and defendant respectively. This has pertinent reference to the foregoing rule 8 which clearly lays down that if defendant appears and if plaintiff does not appear when the suit is called for hearing, "the Court shall make an order that suit be dismissed" unless the defendant admits the claim.
Although the language of the aforesaid rule is quite plain, yet the elaborate interpretation of the rules made by a Division Bench of Allahabad High Court in the case of Nondan Sahu v. Hari Shah (1), may be referred with advantage. In this case a suit was dismissed for non-appearance of the plaintiff bat the same was restored in consequence of an application filed under Order IX, rule 9, C.P.C. This was challenged before the High Court and it was argued that an order made under Order X, rule 4 (2), C. P. C. Tantamount, to the pronouncement of a "judgment" and an order dismissing the suit in default, and therefore, the order of restoration of the suit was illegal. The learned Judges while considering the argument observed as under : "We are unable to accept the contention that under Order X, rule 4(2), Court has no power to dismiss a suit for default of appearance. Obviously there are two alternative courses open to the Court. It may either pronounce judgment against the absent party' or 'make such order in relation to the suit as it thinks fit'. There is nothing to preclude the Court from not pronouncing judgment on the merits, but dismissing it for default of appearance."
3. The aforesaid authority on all fours applies to the case in hand. Following the view expressed in the said authority I find that the order passed by the trial Court dismissing the suit for non- appearance of the petitioner was not appealable and the learned Additional District Judge rightly dismissed the ill-conceived appeal filed by the petitioner.
4. Learned counsel also contended that because no appeal was provided for an order a suit under sub-rule (2) of rule 4 of Order X read with Order IX, rule 12, therefore, the learned Additional District Judge should have treated the appeal as revision and decided the case on merits. The record does not show if such a prayer was ever made to the Additional District Judge. For the present situation none else but the petitioner herself is to blame for the predicament in which she has been landed.
She should have applied under Order IX, rule 9 to the same Court for restoration of her suit but she chose to resort to incompetent proceedings of appeal. Even otherwise she did not pray before the Additional District Judge for treating her appeal as revision. In case of Ghulam Muhuyyudin (2)1 learned Judges of the Supreme Court have ruled that a party which approached a Court having no jurisdiction in the matter cannot be allowed to raise the plea of absence of jurisdiction subsequently.
5. Lastly, the learned counsel for the petitioner submits that since the 8 learned Additional District Judge has refused to exercise revisional juristic
(1) AIR 1932 All. 595 (2) p L D 1969 SC 829 ' tion vested in him, by having not treated the appeal as revision, the case be again remitted to him for deciding it as 'revision'. This argument, if accepted, would violate the provisions of section 115, C.P.C. Which has specifically barred exercise of revisional jurisdiction at two levels.
6. No other point has been raised. Both the orders : one passed by the trial Court on 4th September, 1980 and the other by Additional District Judge, dated 17th May, 1981 being perfectly legal and with jurisdiction do not call for interference in exercise of the revisional jurisdiction of this Court.
7. The result is that the petition being without merit is dismissed without any order as to costs.