Law: Civil Procedure Code (1908)

Section:  O. IX, r. 8, r,9

(a) Letters Patent (Lahore) CI10AppealPoint involving question of factHeld cannot be allowed to be raised for first time at stage of Letters Patent Appeal. [Question of fact]. (b) Civil Procedure Code (V of 1908)  O. IX, r. 8 and Letters Patent (Lahore), cl. 10Dismissal of suit in defaultPlaintiffs making . arrangements for calling counsel in Court when case was called and counsel also leaving his clerkSuchfacts clear proof of plaintiffs and their counsel both being vigilant Case having to be adjourned on account of want of service of their witnessesPlaintiffs' own absence not materialRemand of case for further evidence, field, not necessary in circumstances. (c) Civil Procedure Code (V of 1908)  O. IX r. 9Restoration of suit dismissed in default of appearance Points for consideration. In deciding that a suit dismissed in default it should be restored under Order IX, rule 9, Code of Civil procedure what has really to be considered, is, whether the party was really trying to appear, on date fixed for case ; and he honestly intended to be present, not being guilty of misconduct or gross negligence, then he should not be deprived of his chance of being heard. Under this Rule preoccupation of a counsel in another Court is often considered as a sufficient cause. It is duty of every Advocate, to be present at time when a case is called on for hearing except for a sufficient cause. In our opinion Court will not countenance an application for restoration where party or his counsel does not appear in Court on account of sheer negligence but later on files an application merely alleging that his Advocate was busy in another Court and he could not appear in time. It will not do for an Advocate to get case dismissed for default with impunity and then file an application for restoration stating that his absence was accidental. But this principle will not apply where counsel is not negligent. (d) Civil Procedure Code (V of 1908) O. IX r. 8Dismissal of suit in defaultDismissal of suit mechanicallyA serious errorCourt observations. The lower Court in the instant case seriously erred in dismissing the suit in default mechanically without taking into account this…