GUL ZARIN KIANI J:- 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 Sahiwal, 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 at 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.5,00/- 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 declined. Against this order, an appeal under Order XLI rule 1 (t) Civil P.C. Is filed.
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. 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.LI, sub-rule (2) or rule 17 or rule 18, the appellant may apply to the appellate Court for the readmission 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. Obviously, in case of dispute between the contesting parties it can be 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 to 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 to technical an approach of procedural requirement by the Court. Minor was represented by a next friend appointed by the Court. 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 pul 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.
3. Having regard to the above, it is manifest the 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 in durga Kanta Sarma, is a remand for its decision afresh. In result, 1 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.
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. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.