Law: Civil Procedure Code (V of 1908)

Section: O.IX,R.8

(a) Civil Procedure Code (V of 1908)--- ----O. IX, R.8---Dismissal of suit for non-appearance of plaintiff---Scope---Court could not dismiss suit when either plainitff's claim was wholly or partly admitted by defendant or when plaintifff's presence was not required---Dismissal of suit on a date not fixed for hearing would be a nullity in eye of law---Principles. Habib Bank Ltd. v. Kh. Muhammad Ishaque PLD 1983 SC (AJ&K) 223 rel. Muhammad Hussain v. Allah Dad and 13 others PLD 1991 SC 1104 ref. (b) Civil Procedure Code (V of 1908)--- ----O. IX, R.8---Suit dismissed for non-prosecution---Application for restoration of---Validity---Record showed that relevant date had been fixed by Reader of court on a previous date, when Presiding Judge was on leave---Neither presence of plaintiff was required on relevant date nor same was a date of hearing---Suit was restored in circumstances. PLD 1966 AJ&K(HC) 10; PLD 1964 SC 97, PLD 1979 Lah; 332, 1991 SCMR 1104; 1997 SCMR 1365 and Mst. Akhtar Begum's case 1981 CLC 778 ref. Muhammad Din v. Zabardast Khan and another PLD 1972 AJ&K 7 rel. THIS ORDER PASSED BY: GHULAM MUSTAFA MUGHAL, C J.--- This appeal is filed against the judgment and order dated 18-9-2012 passed by the learned Additional District Judge Hajira, whereby an application for restoration of the suit filed on behalf of the appellant, herein, has been dismissed. Muhammad Shafique, appellant herein, filed a suit against the defendants, respondents herein, for recovery of Rs.500,00,000/- in the Court of Additional District Judge Hajira on 14-7-2011. The learned trial Court issued notices to the defendants. On 27-2-2012 defendants appeared through their counsel but nobody was present on behalf of the plaintiff. The learned trial Court dismissed the suit for non-prosecution. The plaintiff/applicant moved an application for restoration of the suit on 6-3-2012 on the ground that on the relevant date i.e. 27-2-2012 the attorney of the plaintiff was not available because he had gone to attend a case before the Revenue Commissioner at Muzaffarabad. The learned Advocate who was representing the plaintiff also could not appear when the suit was called for hearing due…

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