1. ' This order shall also govern disposal of C.M.Nos,3007-C-91, 1-C-91 and 2-C-91 in FA.O. No,352 of 1978 because of similarity of fads and involving an identical question of law for decision in them.
2. However, facts in each case for the purpose of clarity need be separately stated:- F.A.O. No,351/1978:- ' Dr. SA. Rehman sold a house at Mauza Kamoke, in Tehsil and District Gujranwala to Muhammad Ashraf on 5-11-1975 for sale price of Rs,2,000. Bahadur Kamal as son's son of the vendor claimed pre-emption in respect of the above sale, and, on 17-3-1976 instituted a suit for pre-emption against the vendee, in the Civil Court at Gujranwala. As the vendee-respondent, despite proclamation in daily "Mashriq" did not appear, he was proceeded against ex parte on 6-1-1977 by the trial Court and, on the same day, without taking any ex parte proof, the trial Court decreed the suit ex,parte in favour of the pre-emptor merely upon the averments contained in the plaint of the pre-emption suit subject to payment of Rs,2,000 as the sale price to be paid by or before 15-1-1977.
3. F.A.O. No,352 of 1978:- ' Dr. SA. Rehman sold a house at Mauza Kamoke in Tehsil and District Gujranwala to Muhammad Ashraf respondent at the sale price of Rs,2,000 by a deed of sale registered on 5-11-1975. His son Abdul Ghafoor claimed pre-emption and filed a suit for it on 17-3-1976 in the Civil Court, at Gujranwala. Vendee-respondent, despite service through proclamation in the press did not appear at the trial. Consequently, on 9-10-1976, an order for an ex parte trial of the suit was passed against him, and, on the same day, upon the strength of averments contained in the plaint of pre-emption suit, which were taken to proof of their truthfulness, pre-emption suit was decreed in favour of the pre-emptor subject to his paying Rs,2,000 as sale price to the vendee-respondent by or before 8- 11-1976.
4. ' In two separate appeals registered at serial Nos,40/43 of 1977-78 and 41/40 of 1977-78, respondent brought under challenge ex parte decrees passed against him by the trial Court. By two separate similarly expressed orders passed on 15-11-1978, learned District Judge allowed the appeals and remanded the pre-emption suits with the direction that the defendant-appellant shall be afforded an opportunity to participate in the proceedings and give defence. Aggrieved of the remand orders, plaintiff in each pre-emption suit came up in appeal under O.XLIII, R.1(u), Civil Procedure Code. Both the appeals were admitted to hearing on 27-2-1979. These appeals came up for simultaneous hearing on 19-5-1991, but due to absence of the appellant and his learned counsel, were dismissed for default in appearance. It may be observed that when the appeals were called on for hearing, S.M. Tayyib, Advocate, learned counsel for the respondent in each appeal was present. On 1-8-1991, appellant applied for restoration of the appeals dismissed in default of appearance. In each case, it was pleaded that the learned counsel had failed to notice the case in the cause-fist, due to his indisposition and that the appellant himself had no knowledge/intimation about the fixation of the case on the date of hearing on which the appeals came to be dismissed for default in appearance. Contents in the restoration petition were supported by affidavits sworn by learned Advocate himself. Alongwith the restoration petitions, applications under section 5 of Limitation Act, 1908 were also filed to seek condonation of delay.
5. ' Upon hearing the learned counsel at length and having due regard to the nature of suits, and ex parte decrees passed in them, without taking any evidence, merely on the uncorroborated averments in the plaints, acting under Order 9, Rule 6(1)(a) Civil Procedure Code, I do not feel convinced of the sufficiency of cause assigned for committing default in appearance on the dates of hearing for ordering restoration of the appeals. Both the appeals alongwith the names of respective learned counsel were duly printed in the cause-list of the Court. Mere omission to see the cause-list was hardly a sufficient ground to excuse the default in appearance. If not the learned counsel, his clerk could have located the appeals in the cause-list and informed him accordingly to make arrangements. Furthermore, restoration applications were barred by limitation. Article 168 of Schedule-I of Limitation Act 1908, provided thirty days from the date of dismissal for re-admission of an appeal dismissed for want of prosecution. It is obvious that time under the Article runs from the date of dismissal of the appeal. Section 5 of Limitation Act is inapplicable to an application for restoration of the appeal dismissed for default in appearance under Rule 17 of Order 41, Civil Procedure Code. Inherent powers of the Court ought not to be pressed to aid and assist the negligence or to put a premium upon it. Above all, remand by the lower Appellate Court had merely conceded right of defence to the respondent-vendee in each pre-emption suit so that he could bring forth his version of the case before the Court for adjudication on merits. As observed elsewhere, the trial Court decreed preemption suits ex parte without taking any evidence from the plaintiffs. In number of cases, the superior Courts have ruled that even in ex parte trials, the trial Court may demand some proof of the truth of the case set- forth in the plaint to satisfy its judicial conscience before decreeing it against the defaulting defendant. This was also the reason weighing with me to deny restoration of appeals dismissed for default in appearance. Object behind was that the cases must be decided on merits in presence of both the parties.
6. ' In view of what has gone before, no sufficient cause is made out for restoration of appeals earlier dismissed in default of appearance nor for the condonation of the delay. Restoration petitions are, accordingly, dismissed.