1. ' Plaintiff of the trial Court is appellant in this Court. His appeal arises out of a civil suit filed by him to pre-empt the sale of 128 kanals, 11 marlas of land at Mauza Sahowal, Tehsil Pasroor, District Sialkot, by Habib Ullah to Muhammad Yusuf etc., four in number on 15-1-1980. Pre-emption suit was instituted in the trial Court as Pasroor. It was decreed, on contest, to the appellant on 22-7-1984, conditional upon payment of Rs,80,000 by him within a specified date. Appellant claimed that his suit ought to have been decreed for Rs,55,000 only and filed an appeal for reduction in the price payable for the land. To that extent, his appeal was admitted to hearing and was on the cause list of a learned Additional District Judge, when it was dismissed, for default in appearance on 27-9- 1984. On 29-9-1984, appellant sought restoration of the appeal by filing an application for that relief but before it could proceed to decision on merits, application for restoration was also dismissed in default of appearance on 6-5-1985. On 23-5-1985, appellant brought an application for restoration of this application. On 7-4-1986, the Judge below dismissed the restoration application. Appellant filed an appeal (FAO 129 of 1986) against his order. On 1-2-1987, appeal was allowed by the High Court for restoration of the original restoration application upon payment of Rs,500 as costs and parties were asked to appear before the lower appellate Court on 19th February 1987. On 21-2-1987, the restoration petition was again dismissed in default. On 28-2-1987, application for its restoration was accepted, and, order dated 27-2-1987 was recalled. Net result of above was that an application for revival of the appeal dismissed in default of appearance on 29-4-1984 came under consideration before the learned Judge below. Obviously, respondent resisted. By order, dated 18- 4-1989 impugned in appeal, prayer for restoration of the appeal was declined. Against this order, an appeal under Order_ XLI rule 1 (t) Civil P.C. Is filed.
2. ' Respondents though served in person for today's date of hearing have chosen to stay away from the proceedings. Consequently, the appeal was heard in their absence, and, they were proceeded against ex parte.
3. ' For the appellant, it is contended that the learned Judge below dealt with the application on a priori reasoning, not much relevant to the real issue before him and the case was decided without taking evidence, viva voce or by affidavit. It was argued that this approach had hardly the warrant of law. Learned counsel invited me to number of rulings reported in Durga Kanta Sarma v. Anto Koch and another AIR 1918 Cal. 330, Abdur Rehman v. Allah Ditta and others PLD 1957 (W.P.) Lah. 619; Ghulam Muhammad v. Mst. Sahiban PLD 1957 (W.P.) Lah. 624; Mst. Karam and 3 others v. Noor Muhammad and 4 others PLD 1976 Lah. 498, National Bank of Pakistan v. The Additional District Judge, Lahore PLD 1985 Lah. 326, Sharafat Ali v. Muhammad Boota, etc. 1985 CLC 1063 (latter two are the decisions by me) and in fairness, learned counsel also brought to my notice, a decision of this Court in Muhammad Hussain v. Mian Iqbal Salahuddin 1986 CLC 1441 in which may learned brother Muhammad Ilyas, J., referring to my decision in Sharafat Ali's case reported in 1985 CLC 1063 said "with utmost respect for my learned brother who decided the case of Sharafat Ali, I am of the view that on dismissal of a suit in default, if the plaintiff makes an application for restoration of the suit and satisfies the Court by placing before it affidavit with or without other material that there is sufficient cause for restoration of the suit, the Court can order restoration thereof without framing issues or examining witnesses thereon. Needless to say that before recording his satisfaction, the Court would take into account the affidavit and other material, if any, produced by the defendant. If the plaintiff is unable to satisfy the Court by means of affidavit and other material, there will be nothing illegal or irregular on the part of the Court if it proceeds to frame issues and examine witnesses of the parties before deciding the matter relating to restoration of suit. As for examination of the declarant of an affidavit filed in support of an application for restoration of the suit or the reply thereto, he can be cross-examined by the party against whom the affidavit is filed, at the request of such party or by the Court suo motu.
4. ' However, if no such request is received or the Court does not make a suo motu order for cross- examining the deponent, his affidavit cannot be thrown out merely for the reason that he did not appear as a witness. If the deponent refuses to submit himself for cross-examination when so directed, his affidavit cannot be taken into consideration". I have quoted a passage from the judgment of my learned brother merely to show that in his opinion for which I have deep respect, in case the Court is satisfied with the affidavit of a party seeking restoration, the Court need not take evidence, conversely it may. In my view, there cannot be two standards of proof to judge on "sufficient cause". Either, there is sufficient cause or there is not. In case of Durga Kanta Sarma v.
5. Anto Koch and another AIR 1918 Cal. 330, Fletcher, J with whom Newbould, J agreed observed that "Of course, an application under 0.9, R.9, Civil P.C., must be disposed of on the evidence after it has been properly recorded. Whether the procedure of the Court is to take the evidence viva voce or by affidavit, the Court must deal with an application like this after the evidence is taken. The learned Munsifs view that he was not going over this matter again because it was really the same ground that was urged by the Pleader on the former occasion, cannot be supported. I think we must set aside the orders both of the learned Judge of the First Court, dated 2nd September, 1916, and of the District Judge, dated 25th January 1917, and send the case back to the First Court in order that the learned Judge in that Court may proceed to hear and determine the application under 0.9, R.9, Civil P.C., on the evidence that may be adduced by the parties before him". In the earlier part of the judgment dealing with the kind of pleas taken in restoration petitions, the learned Judge said, "Of course, in these applications for postponement, the grounds set forth of some illness or some domestic tragedy in the family are not always found to be accurate. I have tried many cases, where postponement was sought for on the ground of the death of a member of the family. In one of these cases, the person said to have died was seen walking along the Post Office Street about the time of the hearing of the application. Other applications of similar nature have been made to other Courts also. But still the case has got to be disposed of on the evidence, and not on the view of the learned Judge as to whether these applications are bona fide or not". In decisions reported in PLD 1985 Lahore 326 and NLR 1985 Civil 182, I took the view that evidence was required to be taken for decision on "sufficient cause". If a suit is dismissed in default of appearance on the first hearing under 0.9 or at the adjourned hearing under 0.17, Civil P.C., the remedy provided for its restoration is in R.9, which says that "if he satisfies the Court that there was sufficient cause for his nonappearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal" Analogous rule for dismissal of appeal for default in appearance by the appellant is R.17 of Order XLI, Civil P.C. It imports a discretion in the Court either to dismiss the appeal in default or adjourn its hearing to another. Date. Rule 19 provides a remedy for re- admission of the appeal dismissed for default. It says, "where an appeal is dismissed under R.11, sub-rule (2) or rule 17 or rule 18, the appellant may apply to the appellate Court for the re- admission of the appeal; and where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit". Rule 9 uses the word "satisfies" whereas rule 19 employs the term "proved. In either case, defaulting party seeking restoration of suit or appeal is obliged to satisfy/prove that it was prevented by sufficient cause from appearing when the case was called on for hearing by the Court. The real question is, how is the defaulting party to satisfy or prove the "sufficient cause" to explain its non-appearance.
6. Obviously, in case of dispute between the contesting parties, it can he only by leading evidence, either viva voce or by affidavits. Ordinary rule is that evidence is recorded viva voce in Court but affidavit-evidence is also permissible with the permission of the Court as in Order XIX Civil P.C., or by the agreement of the parties. In any case, taking of evidence is an essential requirement for deciding on sufficiency of cause to explain the default in appearance and in its absence, the point at issue cannot be satisfactorily decided by the Court and this is what I had earlier said in my two decisions. Further, when I said that an issue may be framed, I had in mind that the "issue" puts the party on guard as to what it had to prove and bring evidence on. After having re-examined the whole issue afresh, I feel convinced that rule about recording of evidence was correct. As to the previous defaults in the case those, may not be strictly relevant because they seem to have been already condoned. Similarly, in regard to the point that application for restoration was filed by the minor without the aid of his next friend, shows too technical an approach of procedural requirement by the Court. Minor was represented by a next friend appointed by the Court.
7. Advocate conducting the case on his behalf was engaged by the next friend. Affidavit annexed to the restoration application was that of the next friend. Therefore, it is clear that application for restoration was put in by the next friend on behalf of the minor appellant. Merely that the restoration application did not indicate it, was inconsequential and could not be fatal to the restoration application.
8. ' Having regard to the above, it is manifest that the restoration application was not properly dealt with. In the circumstances, what ought I to do now is the question. The answer, like the case is Durga Kanta Sarma is a remand for its decision afresh. In result, I must accept the appeal, set aside the impugned order, and remit the case back to learned District Judge, Sialkot to hear and determine the application under order XLI, rule 19 Civil P.C. Afresh on the evidence that may be adduced by the parties before him. This evidence, as said above, can either be oral or by affidavit.
9. Appellant shall appear before the learned Judge below on 30-7-1990. As the respondents despite service did not appear to oppose, I shall not make any order as to the costs of the appeal in this Court.