' This revision petition is filed to challenge the correctness and legality of the order of the Sub- Judge Mirpur, passed on September 29, 1994, whereby an application for restoration of the suit was dismissed.
2. The facts precisely, are that a suit for declaration and possession by pre-emption was pending before the learned Additional Sub-Judge, Mirpur in which, plaintiff-petitioner was ordered to deposit the one-fifth of the preemption money on February 20, 1992. The above order was challenged through a revision petition filed by the defendant-respondents before this Court which was accepted and the suit of the plaintiff-petitioner to the extent of preemption was dismissed. A further appeal by way of leave preferred by the plaintiff-petitioner before the Supreme Court of Azad Jammu and Kashmir was allowed and setting aside the order passed by this Court, the order of the trial Court was restored. After the order passed by this Court, mentioned above, the suit was dismissed in default on August 3, 1992. An application for restoration of the same moved before the trial Court, was dismissed on September 29, 1994. This revision petition is filed to challenge the aforesaid order.
3. Mr. M.Y. Arvi, the learned Counsel for the petitioner has raised the following points:---
(i) That the learned trial Judge illegally held the application for restoration of the suit as time- barred. It was emphasised that the limitation prescribed for filing a restoration application for a suit dismissed in default, is 90 days and not 30 days as determined by the trial Court. The learned Counsel also placed on record a photo copy of the amendment incorporated in the Limitation Act;
(ii) that after passing the judgment by the High Court, the plaintiff-petitioner filed a petition for leave to appeal which was allowed and / finally the appeal was accepted by the Supreme Court.
During this period, the file was transmitted to the trial Court and the suit was dismissed for non- prosecution. The learned Counsel also argued that the plaintiff-petitioner and his Counsel were under the impression that due to the revision petition before the High Court and thereafter appeal before the Supreme Court, the proceedings automaticey had been stayed; ' that the plaintiff-petitioner produced the evidence in support of sufficient cause justifying his inability for non-appearance. The defendant-respondents did not bring on record any evidence in rebuttal of evidence placed on record by the plaintiff-petitioner. It was argued that the learned trial Judge failed to appreciate the above evidence and held the same not a sufficient cause for non- appearance of the plaintiff; and
(iv) that none of the parties, either the plaintiff or the defendants, was aware of the fact of transmission of file to the trial Court and the dismissal proceedings taken by it, as such, the cause shown by the plaintiff-petitioner for being unaware of the above fact, was sufficient.
4. On the other hand, Raja Muhammad Siddique Khan, the learned Counsel representing the respondents opposed the petition on the grounds:---
(i) That the amendment referred to above by the Counsel for the petitioner, incorporated in Article 163 of the Limitation Act, is not applicable to the case in hand. It was argued that the amending Act was passed on June 24, 1992 but the same *as published in the Government Gazette on August 10, 1992, therefore, the law is not applicable to the cause arisen in the case through an order passed by the trial Court on August 3, 1992. It was emphasised that the law comes into operation after its publication in the official gazette and further argued that the law already having the field before the amendment shall be applicable to the above case, as such, it was argued, the application for restoration of the suit, was time-barred;
(ii) that all the orders passed by the trial Court before the passing of dismissal order, were recorded in presence of the Counsel for the plaintiff-petitioner, as such, the plea of unawareness of the proceedings is not available to the petitioner; and
(iii) that the evidence brought on record by the plaintiff-petitioner in support of sufficient cause for non-appearance was appreciated by the trial Court keeping in view the principle of appreciation of evidence, warranting no interference by this Court, particularly in exercise of its revisional jurisdiction.
5. I have heard the learned Counsel for the parties and also gone through the record, with care. It may be mentioned that the judgment in the revision petition filed before the High Court was passed on May 18, 1992 and a petition for leave to appeal against the aforesaid order was reported to have been filed on May 26,1992, wherein leave was granted on June 27, 1992 while the final judgment was passed on November 28, 1992 by the Supreme Court. A perusal of the record shows that the parties were not directed to appear on a particular date before the trial Court by the High Court and a notice to this effect also does not appear to have been issued to the parties by the Additional Sub-Judge. However, the presence of both the Counsel is marked by the trial Court on the date of hearing after the receipt of the file. It may also be stated that the matter of dismissal was not brought to the notice of the Supreme Court at the stage of leave or appeal. The learned Judges in the Supreme Court also recorded the order in the case under the impression of the same being pending in the trial Court. It appears that none of the parties was aware of the fact of dismissal of the suit.
6. Before dealing with the point of "sufficient cause", in the given circumstances, it seems appropriate to advert to the point of limitation first. To set aside the dismissal under Rule 4 of Order 9, or under Rule 9 of Order 9, C.P.C., the limitation provided under Article 163 of the Limitation Act is 90 days and not 30 days as held by the subordinate Court. Before the amendment incorporated in the Limitation Act, the limitation prescribed under Article 163 of the Act was 30 days which stands amended by Amendment Act enforced on June 24, 1992. It may be clarified that a Bill passed by the Assembly or a joint sitting, shall be presented to the President for his assent and the President shall assent to a Bill within seven days after it has been presented to him for assent and if the President fails to do so, he shall be deemed to have assented to the Bill at the expiration of the said period. When the President has assented or is deemed to have assented to a Bill, it shall become law and be called an Act of the Assembly under section 36 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The instant Amendment Act was assented by the President on June 24, 1992 when the same became law after coming into force at once. The reliance in this regard may also be placed on the verdict of the Supreme Court of Azad Jammu and Kashmir, recorded in the case titled 'Azad Government v. Muhammad Yunus Tahir and others' (1994 SCR 341). In the light of the aforesaid relevant provision, the argument advanced by the learned Counsel for the respondents is of no avail and merits no consideration. Consequently, the observation made by the trial Judge describing the application to set aside the dismissal of the suit as time-barred, also runs counter to the law applicable to the case which escaped his attention. Therefore, it is safely concluded that the application was moved well within the limitation.
7. So far as the question of 'sufficient "cause' for non-appearance of the plaintiff-petitioner is concerned, it may be stated that the term "sufficient cause" is not susceptible of an exact definition and no hard and fast rule can be laid down to cover all possible cases, Each case is to be judged upon its peculiar circumstances. The "sufficient cause" is a question of facts depending upon the facts of each case and the Court in restoring a suit, acts in exercise of its judicial discretion which should be exercised in a judicious manner having regard to all the facts and circumstances. It may be mentioned that the instant case was dismissed after the file was sent to the trial Court by the High Court.
The petition for leave to appeal had already been filed by petitioner and a leave was also granted by the Supreme Court. The plaintiff-petitioner, in support of sufficient cause for his non- appearance, has produced the evidence wherein it is stated that due to above proceedings pending in the Supreme Conn, he presumed the proceedings pending in a way. The defendant- respondents did not bring any evidence on record in rebuttal of above evidence. 'Therefore, in the light of the evidence produced by the plaintiff-petitioner and the supporting circumstances, such as filing of petition for leave to appeal, grant of leave to appeal much earlier than the dismissal order and not bringing the fact of dismissal to the notice of Honorable Judges in the Supreme Court till the final order was passed, it is satisfied that the existence of "sufficient cause" for non- appearance was there. The objection taken by the learned Counsel for the respondents with regard to the presence of the petitioner's Counsel, marked by the trial Court before the dismissal of the suit, carries no weight, particularly in the circumstances when the fact of dismissal did not appear to be in the knowledge of, Counsel for the defendant-respondents who was also marked present by that Court which can be gathered from the order passed by the Supreme Court for directing the parties to appear before the trial Court unaware of the fact of dismissal of the suit.
8. Where the non-appearance is not intentional and the Counsel or his client has made genuine efforts or taken reasonable precautions to be present at the hearing, a very strict view is not to be taken as the Courts lean in favour of adjudication on merits, rather than stifling the proceedings on technicalities.
9. In the light of the above discussion, the revision petition succeeds Setting aside the impugned order, the suit is restored and the trial Court shall proceed with the case from the stage it was dismissed for non-prosecution; in accordance with law.