' Facts in brief giving rise to the present civil appeal are that Sharafat All instituted a civil suit seeking specific performance of an agreement, dated 19-6-1982 in respect of land measuring 33 Kanals 54 Merles against Muhammad Boota and another in the Court of Senior Civil Judge, Gujranwala. Notices were issued to the defendants.
' Defendants appeared in Court. On 11-7-1984, since neither the plaintiff nor his counsel had put in appearance when the defendants were present, learned Senior Civil Judge dismissed the suit for default in appearance. Petition seeking restoration of the suit dismissed in default was made on 16- 7-1984 five days after the dismissal of the suit under Order IX, rule 9, C. P. C. restoration petition without calling for the reply from the defendants, has been dismissed on 19-7-1984, by the Senior Civil Jdge stating that no ground has been shown explaining the absence of the counsel.
Impugned order, dated 19-7-1984 passed by Senior Civil Judge refusing restoration of suit has been assailed in this first appeal.
2. I have heard Mr. C.A. Rehman, Advocate, learned counsel for the appellant and Mr. Muhammad Afzal Wahla, Advocate, learned counsel for the respondents. Mr. C.A. Rehman contended that the proceedings under Order IX, rule 9, C. P. C. by virtue of section 141, C. P. C. are original proceedings.
Learned Senior Civil. Judge, therefore, acted with material irregularity in exercise of his jurisdiction in throwing out the restoration petition without affording an opportunity of adducing evidence in support of the plea taken for restoration of the suit. Learned counsel contended that, in law, the Court was bound to record evidence and then decide whether or not sufficient ground had been shown for absence of the plaintiff or his counsel on the date fixed. He also submitted that in view of rule of law, in Abdur Rehman v. Allah Ditta and others PLD 1957 (W.P) Lah. 619, the plaintiff was only to explain his own absence on the date fixed for hearing and not that of his counsel. Even then, if the plaintiff had been afforded opportunity to lead evidence, he would have amply demonstrated that not only there were 'sufficient grounds for his own absence but that for his counsel also.
Absence of explanation regarding default made by counsel in entering appearance on the date fixed for hearing cannot be a valid ground to penalize the plaintiff and throw out his suit, which involved valuable rights to property.
3. Learned counsel for the respondents, however, submitted that when the party engages a counsel and both fail to appear on the date fixed for hearing, explanation for the absence of both i.e. party and the counsel showing as has to be given to why they did not appear on the date fixed.
In the instant case, there may be some explanation for non-appearance of the plaintiff on the date fixed but none as regards his counsel. Plaintiff can squarely be made responsible for the negligence of his own counsel. Therefore, when there was no explanation offered for the absence of the counsel on the fateful date, the trial Court was justified in disallowing the prayer for restoration of the civil suit. Plaintiff, according to learned counsel, must accept the consequences of his own and that of his counsel's negligence. With dismissal of the suit, the defendants have acquired, valuable rights of which they cannot be lightly deprived of. Unless good cause was shown for the absence on the date fixed, the suit could not be restored, may be, that it involved valuable property which in itself was not a recognized ground for restoration of the suit.
4. Under Order IX, rule 8 read with Order XVII, C. P. C., where the defendant appears and the plaintiff does not, on the adjourned date fixed for hearing, the Court may make an order that the suit be dismissed. In the case under consideration, relying on this provision of law, the suit was dismissed by learned Senior Civil Judge. Petition for restoration was made under Order IX, rule 9, C. P. C.
Without calling for reply and affording any opportunity to the plaintiff to adduce evidence showing what were the circumstances which prevented him and his counsel to enter appearance on the date fixed, the learned Senior Civil Judge refused restoration solely on the ground that no explanation had been furnished regarding absence of the counsel for the plaintiff. Proceedings under Order IX rule 9, C. P. C. are original proceedings. When a petition for restoration is made it has to be decided on evidence and the party is entitled under law to substantiate by evidence the grounds taken in support of the restoration petition. In the instant case, the learned Senior Civil Judge without adopting the correct procedure has refused restoration. It is correct that the plaintiff had engaged a counsel and that the counsel did not enter appearance on the date fixed. In. case Abdur Rehman v. Allah Ditta and others PLD 1957 (W.P) Lah.
619, this Court observed:- "If there be sufficient cause for personal non-appearance of the plaintiff that is a good ground for restoration of suit even though it may have been possible for a plaintiff to make arrange ments for appearance through somebody else for no party to a suit is under any obligation to engage counsel. I would restore a suit in a case where there was sufficient cause for personal non- appearance of a party even though a counsel for the party was negligent in appearance. Suppose a party who has engaged counsel tries to reach Court at the time of hearing but due to an accident is prevented from doing so and suppose that the counsel fails to put in appearance without good reasons, the suit should be restored for there is sufficient cause for the party's non- appearance even though the counsel could have put in appearance. The party cannot in such a case be penalized just because it had engaged counsel. It may not have done so. So in the present case even if counsel for the plaintiff could have been present but did not appear, the suit should be restored if Judge reaches the conclusion that there was suficient cause for the plaintiff not appearing. Such sufficient cause there was for it is not the intention of the law to prevent parties from exercising their civil rights".
'The general policy of the law leans in favour of adjudication on merits and dismissal in default should serve as an exception to this general rule of law. In the instant case, it is stated in the petition, that the plaintiff was seriously handicapped by his illness and was admitted in hospital, this by itself if proved, was a sufficient ground offered in support of the plea of the absence on the date fixed. Only question remained whether in the absence of any satisfatory explanation for counsel's non-appearance on the date fixed, restoration of suit could have been refused, in view of rule of law laid down in PLD 1957 Lah.
619. I myself could have, in appeal, directed against the impugned order, considered propriety of restoring the suit but then refrained. Since learned Senior Civil Judge had proceeded to refuse restoration without calling for reply and recording of evidence, I thought that it was his jurisdiction to decide first in accordance with law whether sufficient grounds had been shown to exist for ordering restoration of the suit. It is well-established rule of law that when a Court is vested with a jurisdiction how low it may be, it is that Court C which has to exercise its jurisdiction first and exercise of that jurisdiction by a higher tribunal without allowing the former to exercise it, tanta - mounts to pre-empting the jurisdiction of the lower Court which, with respects, may not be permissible under law. In deference to the rule of law so stated, I feel that the restoration matter should first be decided by the learned Senior Civil Judge after calling for reply and affording an opportunity to adduce evidence to the parties as is the requirement of law. A litigant who comes to Court to seek justice, must not be denied the same by Court unless there are insuperable legal hurdles in its way to dispense justice for which purpose it alone exists. Appeal, in these circumstances, is allowed, impugned order, dated 19-7-1984 passed by learned Senior Civil Judge is set aside and the case is remitted to him for redecision of the restoration petition in the light of the observations made above. In the circumstances, parties are directed to bear their own costs.
Parties now to appear before the learned trial Court on 13-12-1984.