1. ' Constitutional petition relates to a pre-emption matter and arises on the following facts: - Aleem-ur-Rehman, respondent No. 1 in writ petition, claimed a superior right of pre-emption in respect of the sale and instituted a civil suit against Mst. Amina Begum in the civil Court on 1-7- 1979, Parties appeared and filed pleadings. Dispute is reflected in issues framed by the trial Court.
2. Plaintiff's evidence was recorded and then the suit was adjourned for the defendant's evidence.
3. Some witnesses were produced and the suit was then postponed for producing remaining defence, when on 2-9-1981, plaintiff's learned counsel recorded the following statement: -[URDU TEXT] ' On the statement made by the learned counsel for the plaintiff, the Court proceeded to make the order which reads:- ' On 15-9-1981, after expiry of about 13 days of the dismissal order, plaintiff/pre-emptor moved a restoration petition. Defendant-vendee contested this move and filed a reply. Trial Judge raised the following issues: -
(1) Whether the application is not maintainable? O.P.R.
(2) Whether there are reasonable grounds to restore the suit? O.P.A.
4. Witnesses were examined by the parties in support of the above-noted issues. The above-noted issues were answered in favour of the plaintiff/petitioner and vide order, dated 2-4-1984, learned Civil Judge, Gujranwala ordered restoration of the civil suit, to start proceedings from the stage where it was at the time of the making of the order, dated 2-9-1981. Revision filed, was dismissed, by learned District Judge vide order, dated 23-10-1984. Orders passed by the Courts below have been assailed in constitutional jurisdiction by the vendee defendant.
2. I have heard learned counsel for the petitioner. Learned counsel states that the suit, after it had been withdrawn, by the learned counsel for the plaintiff, could not be restored to its original number to be tried on merits. Learned counsel, per terms of his power-of attorney, was authorised to make the statement. When he withdrew the suit which power was vested in him, proceedings in the civil suit ended finally and irrevocably and this should be treated as a decision on merits against the plaintiff. Courts below, therefore, acted in gross violation of law and without jurisdiction in treating it as a dismissal in iefault for purposes of ordering the restoration of the suit.
5. Learned counsel stated that it was clearly a case falling under Order XVII, rule 3 and the Court had no jurisdiction once it had passed the order permitting the withdrawal to order restoration at the instance of the iefaulting plaintiff.
3. Contentions raised, though attractive, on close examination, do not have any serious merit.
6. Plaintiff's evidence had been concluded. )efendant had partly concluded his defence and the case was at the where the remaining evidence was to be produced by the defendant. t is in these circumstances when on 2-9-1981, plaintiff's counsel made he statement which resulted in the disposal of the civil suit. Close 'eading of the statement and the order passed by the Court leads to in irresistible conclusion that the counsel had reported "no instructions". Plaintiff was not present in person on the said date. When his counsel withdrew from the suit, reporting no instructions, the suit could not be deemed to have been decided on merits against the plaintiff foreclosing nis right to restoration. The statement made by the learned counsel for the plaintiff on 2-9-1981 could, at the most, result in an order for dismissing the suit in default. In case, neither the plaintiff nor his counsel appeared on the date fixed when the defendant was in attendance, only order that could legitimately be passed was to dismiss the suit in default. Findings on merits could not have been recorded. It is also clear from the order that effect of order, dated 2-9-1981 was not withdrawal of the suit under Order XXIII, C.P.C. Explanation offered for the absence has been accepted by the Courts below and restoration of the suit ordered. In Ghulam Haider v. Diwan lqbal Nath and others AIR 1936 Lah. 1000, Agha Haider, J in somewhat similar circumstances observed:- "The pleaders for the plaintiff appeared on 29th April, 1935 but they intimated to the Courts that they had no instructions from their client. This tantamount to default of appearance by the plaintiff as laid down in a Full Bench decision of the Allahabad High Court in 22 All. 66(2)."
7. ' In Manmatha Nath Chaudhry v. Jamini Nath Malik AIR 1926 Cal. 246 a Bench decision, learned Judges observed:- "When after an application for adjournment is rejected, the parties pleader states that he has no further instructions that is equivalent to the absence of the party from the hearing and so if the plaintiff's suit is dismissed for default, it is a dismissal under rule 8 of the Order IX, and the plaintiff is entitled to make an application under Order IX, rule 9 and an appeal lies against the order refusing that application."
8. ' In Rukam and another v. Tara Chand AIR 1922 All. 68 Banerji, J. observed:- "As the plaintiff was not present and his pleader had no instructions there was default on the part of the plaintiff on the 2nd of March, 1921, and the Court could only have dismissed the suit under Order IX, rule 8 of the Code of the Civil Procedure read with Order XVII, rule 2. It is true that the rule last mentioned provides that the Court may proceed, in circumstances like those of the present case, under Order IX, rule 8, or make arty other order in the case. The other order which according to the rule could be made by the Court was an order postponing the hearing of the case. But the rule certainly does not contemplate a hearing of the case on the merits in the absence of the plaintiff or his pleader. As the pleader had no instructions and the plaintiff was not peronsally present, the plaintiff must be deemed not to have appeared on the date of the hearing, and the only order which the Court could have made was an order of dismissal for default. The order passed on the 2nd of March, 1921, although purporting to be an order of dismissal on the merits, was in reality and in substance an ing the suit for default.
9. ' The Court must be taken to have done that which it could only do under the provisions of the law.
10. Therefore, the Court below was entitled under Order IX, rule 9 to restore the case to its original number and to rehear it on the merits."
11. ' It is no doubt true that the plaintiff was absent on the fateful day and his counsel reported no instructions, but then after some days, the plaintiff appeared and stated grounds which had prevented him from appearing on the date fixed. Court have examined the explanation offered and finding substance therein ordered restoration of the civil suit. Plaintiff's evidence was already on record alongwith part of the evidence adduced in defence. Defendant had to examine the remaining evidence. The Courts below, therefore, taking a proper view of the law and the circumstances rightly ordered restoration of the suit to be decided on merits. Orders passed apart from the fact that they do not suffer from any error of law or jurisdiction are substantially just and proper. Order, dated 2-9-1981, if allowed to stand, will perpetuate injustice and cause incalculable harm to the plaintiff's right, to have the controversy, he brought to the Court, decided on merits.
12. Defendant should not grudge him this right. As a result of foregoing discussion, I find it difficult to accept the contentions raised by learned counsel for the petitioner. Writ petition fails and is dismissed in limine.
13. Writ refused.