Law: Civil Procedure Code (V of 1908)

Section:  O. IX, r. 8

Civil Procedure Code (V of 1908)  O. IX, r. 8-Dismissal in default-Case, held, could not be dismissed for default of appearance in early hours of day-Order passed by High Court restoring such case, held further, does not ordinarily call for interference by Supreme Court. Date of hearing 15th March 1981.                                                                                                        ORDER NASIM HASAN SHAD, J.-This petition for leave to appeal is directed against the judgment dated 6-12-1980 passed by a learned Single Judge of the Lahore High Court, whereby he accepted the revision petition of the respondents and set aside the orders of the Courts below. The relevant facts are that the petitioner was defendant in the suit for pre-emption pending in the Court of the Civil Judge, Pindigheb. The suit was fixed for filing of the amended written statement by the defendant (petitioner herein). On the said date, neither the plaintiff (respondents herein) nor their counsel was present. The case was called and dismissed in default under Order IX, rule 8, C. P. C. in the early hours of the day. The respondents filed an appeal before the learned District Judge which was dismissed on 27-3-1979. They then moved the High Court in revisional jurisdiction. The learned Judge in the High Court accepted the revision petition on two-fold grounds; firstly, that the date on which the suit was dismissed was merely for filing of the written statement and was, therefore, not the date of hearing within the meaning of Order IX, rule 8, C. P. C. Con sequently, the suit could not be dismissed in default on the said date and secondly, the suit had been dismissed in default during the early hours…