1. ' This is an application under Order IX, Rule 9, C.P.C. Filed on 19-2-1994 on behalf of the plaintiff praying for recalling of the order dated 14-3-1993 passed by a learned Single Judge of this Court dismissing the suit for non-prosecution.
2. ' The brief facts of the case are that the suit was filed on 21-7-1992 for recovery of Rs,961,527.04. On 9-12-1992 this Court granted unconditional leave to appear and defend the suit to the defendant.
3. Written statement was filed by the defendant on 7-1-1993 and the case was fixed for issues on 14- 3-1993 when, as stated above, the suit was dismissed for non-prosecution as none was present on behalf of the plaintiff. The said order is reproduced below: "None is present.
4. ' This matter has been called twice since morning but none is present for the plaintiff. It is 11-45 a.m.
5. Dismissed for non-prosecution."
6. ' In support of the application for restoration of the suit, Mr. Siddique Mirza, learned counsel for the plaintiff, has filed his own affidavit. According to the learned counsel, he was present in the Court on 14-3-1993, as he had a case fixed before the learned Chief Justice and a case before Mr. Justice Mukhtar Ahmed Junejo (as he then was), he got free at about 11-30 "and inquired from the reader about Suit No, 490/92 and came to know that the Suit No, 490/92 is adjourned to date in office."
7. Thereafter, it was only in February, 1994 that the learned counsel thought of checking the record and progress of the matter and he came to know that the suit was dismissed on 14-3-1993 for non- prosecution. The learned counsel, while arguing this application, also referred to some letter received from the defendant but when he was asked to produce the said document through which he received the knowledge of the dismissal of the suit, he stated that it was somewhere on the record of the Court file. No document has been produced/submitted in support of the above contention for filing this application for restoration of the suit after more than a year. It may be pointed out here that under Article 163 of the Limitation Act, the petition for filing an application to set aside an order dismissing a suit for default of appearance of the plaintiff is thirty days.
8. ' The learned counsel also contended that the suit could not be dismissed as a duty is cast upon the Court to frame issues. According to him, Order XIV, Rule 1, sub-rules (5) and (6) provide that even if the parties are not present, it is the duty of the Court to go through the plaint and the written statement and frame the issues, and not to dismiss the suit. He has further contended that under Order XVII, Rule 2, C.P.C., again it was the duty of the Court to proceed and dispose of the case and the suit could not be dismissed. The learned counsel has relied on the case of Muhammad Haleem and others v. H.H. Muhammad Nairn and others (PLD 1969 Supreme Court 270).
9. ' Now, taking the first contention of the learned counsel that under Order XIV, Rule 1, sub-rules (5) and (6), C.P.C. The Court should have proceeded and not dismissed the case. There is no doubt that framing of the issues has been enjoined on the Courts, but that is only to see that the issues are framed according to the pleadings on the basis of which parties can adduce evidence. Further the duty of the Court is to see that no unnecessary and irrelevant issues are framed and that those issues should not be into negative form. Sub-rule (5) in very clear terms also states that "after such examination of the parties as may appear necessary". Thus making it incumbent on the parties to be present on the day of settlement of issues. Under sub-rule (6) the Court could have skipped to frame issues where only the defendant is absent. A duty is cast upon the plaintiff to pursue his case diligently and where he B neglects or fails in his duty to do so, Order 9, rule 3 will become operative.
10. In my opinion, neither Order XIV, Rule 1, sub-rules (5) and (6) are applicable, nor Order XVII, Rule 2, C.P.C., is attracted in the present case.
11. ' Under Order XIV, rule 1, sub-rules (5) and (6), the law is very clear that at the first hearing of the suit the Court shall, after reading the plaint and the written statement, if any, and after such examination of parties, as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. Under sub-rule (6), if the defendant does not appear on the first hearing then the Court can skip the framing and recording of the issues.
12. ' So far as Order XVII, Rule 2, C.P.C. Is concerned, the same is attracted only where the suit was adjourned to a fixed date and the parties, or any one of them, fail to appear on the next date. Then, it is the duty of the Court to proceed to dispose of the suit as provided under the law. In the present case no such adjournment was sought by the parties or was granted by this Court on the contrary the case was fixed according to the Roster.
13. ' In the case of Muhammad Haleem and others (supra) on which the learned counsel for the plaintiff has relied upon, it has been observed that the provisions of Order IX of the C.P.C. Are not attracted where evidence has concluded and the matter was fixed only for arguments. The presence of the parties in such a case is not necessary. In the cited case, the facts are that the application for restoration was dismissed holding that no sufficient ground had been made out for the restoration of the case. In the order it has been reiterated that the case was called thrice but neither the petitioners, nor their learned counsel, had appeared but only a chit was sent to the Reader requesting that the case may not be taken up as the learned counsel was busy before the Supreme Court.
14. ' The question in this case was whether the Attorneys of the Supreme Court are entitled to absent themselves from their pending matters in the High Court on the ground that they have to be present before the Supreme Court during the hearing of their matter. It was held as under: "We cannot also help observing that the procedure adopted by the Attorney in the present case, of sending a chit to the High Court was wholly improper and disrespectful to the High Court. It was his duty to appear before the High Court at its first sitting and to inform the Court that due to an unfortunate miscalculation the appeal was still continuing and if the High Court was not prepared to accommodate him, then he should have sought accommodation from the Supreme Court or retired from the case in the High Court."
15. ' In the present case, the learned counsel appearing for the plaintiff had not even left a slip with the Reader of that Court or had informed him that in case the matter is called, he should inform the Court that he was busy before another Bench. Further learned counsel has stated in his affidavit that he came to the Court at 11-30 a.m. To inquire from the Reader and he was informed that the case has been adjourned to a date in office. While the order of the Court very clearly shows that the case was lastly called at 11-45 a.m. When it was dismissed. As such, it cannot be comprehended and believed that the Reader of the Court can give him such an information at 11- 30 a.m. In my opinion, the relevant Order applicable in the present case is Order IX, C.P.C., the very provision under which the learned counsel has filed this application for recalling the dismissal order dated 14-3-1993. Order IX, Rule 3 very clearly empowers the Court in the following words: "3. Where neither party appears, suit to be dismissed.-- Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.
16. There is no doubt that under Order IX, rule 9, C.P.C. The only consideration before the Court of law is to do justice between the parties and in the absence of any express bar, it should not hesitate to grant proper relief on mere technical grounds but the section also specifies 'if he satisfies the Court that there was sufficient cause for his non-appearance'."
17. Even if the ground given by the learned counsel for non-appearance is accepted, he has made no application for condonation of delay, nor there is any affidavit stating therein that in case there is any delay, the same may be condoned. In the present case, the delay in filing the present application is nearly of one and a half year and substantive rights have accrued to the defendant who has been coming from Lahore to attend the proceedings.
18. ' In the absence of such application for condonation of delay or any ground in support thereof, and the defendant resisting the present application, the Court is left with no alternative but to dismiss C.M.A. No, 869/94.
19. ' The above are the reasons for the short order passed on 6-11-1994.