' A Civil Suit No,48/1 was filed by Khol Marjan respondent against Asal Marjan and another, on 1-12- 1993 at Civil Court, Karak. On 10-6-1996 the counsel for the plaintiff was present who stated in Court that he had no instructions from his client and hence the trial Court dismissed the suit under Order 17, rule 3, C.P.C. The plaintiff filed an application on 17-12-1996 for restoration of suit which was considered to be time-bared by six months and seven days and hence dismissed by the trial Court on 27-11-1997. The plaintiff went in appeal which was accepted by the learned District Judge, Karak on 13-3-1998 and the case was remanded to the trial Court after restoration. The defendants have come up in revision.
2. It is a settled law that in case the counsel is present in Court without instructions from his client, the Court should have at the most dismissed the suit in default. This too cannot be done unless the Court allows the counsel to withdraw his power of attorney.
3. The better course would have been adjourned the case and to summon the petitioners. That is what has been observed by the learned Sessions Judge which should not be set aside in revision.
4. As the counsel for the plaintiff had rather facilitated the dismissal and as the plaintiff was not aware of the fate of his suit, he obviously would have asked for restoration only after getting knowledge of dismissal which was of course legal.
5. Another important aspect of the case is that proceedings under Order 17, rule 3, C.P.C. Can only be taken when the adjournment is granted on the request of the party concerned. In the instant case, the previous order-sheet, dated 22-4-1996 would indicate that no request was made for adjournment by the plaintiff and the same was just in routine. This was a void order and hence could be challenged at any time specially when the date of knowledge as alleged by the plaintiff on affidavit is not refuted by a counter-affidavit. Anyhow one thing cannot be ignored that the plaintiff, in not keeping contact with his counsel, was negligent.
6. Resultantly the revision is hereby dismissed with direction that the suit shall stand restored only, on payment of Rs,1,500 as costs, failing which the impugned remand order shall not hold the field.
Parties to appear before the Senior Ciyil Judge, Karak on 31-10-2001.