Law: Civil Procedure Code (V of 1908)

Section: 2,3

 Civil Procedure Code (V of 1908),   O. XVII, rr. 2 & 3 Application-Plaintiff not only failing to deposit 1/5th of purchase price in pre-emption suit but also defaulting in appearance on adjourned date of hearing-Suit dismissed in consequence Case, held, falls under both r. 2 and r. 3-Rule 3 being stringent, to be applied only when facts do not admit of application of r. 2.   Date of hearing : 16th June 1964.  JUDGMENT   ABDUL HAMID KHAN, C. J.-Fazal Dad, the plaintiff petitioner, brought a suit for possession of the suit land by pre emption against the defendants on 1-10-1960, in the Court of Sub-Judge, Bhimber on 9-11-1960. He was ordered by the Sub -Judge to deposit 1/5th of the purchase money with the Court till 19-12-1960. On 19-12-1960 as also on the following dates to which the case was adjourned, the plaintiff, according to the Sub-Judge, Bhimber, failed to comply with the order of the Court. On 19-4-1961 when the suit was called for hearing, neither the plaintiff nor his counsel put in appearance with the result that the suit was dismissed for plaintiffs' default in appearance in the Court and also for his non-payment of 1/5th of the purchase money. On 24-4-1964, the plaintiff moved an application under Order IX, rule 9, C. P. C. for restoration of the suit on the ground that on the date of dismissal of the, suit, he was ill and therefore, unable to attend the Court and that his counsel too was engaged in a case before the Tehsildar and could not put in appearance on his behalf. He, further, pointed out in his application that lie had on 19-12-1960 made an application to the Court for deposting Rs. 800 the 1/5th of the purchase money but due to the absence of the Presiding Officer on that date, his application could not receive attention of the trial Judge till 30-1-1961 when an order for depositing the money was passed by the Sub-Judge. He prayed in his application that in view of these facts, his suit should be restored. The trial Court rejected his application for restoration of the suit on 24-4-1961, for the reason that the amount in question had not been deposited in time. Against this order of the Sub-Judge,…