Before Din Muhammad, C. J. and Khem Chand, J.
ALLAH DITTA and others
Constitutional Appeal No. 3 of 1947, decided on 20th Decem¬ber 1947, against the order of Syed Ghulam Murtaza Shah, dated 26th March, 1946.
Civil Procedure Code (V of 1908), O. IX, R. 8-Case fixed for arguments-Plaintiff absent-Case could not be dismissed in default-Court should hear arguments of defendant and dis¬pose of case on merits-Or wait until end of day-Civil Procedure Code (V of 1908), O. XVII, R. 2.
Order IX, r. 8, comes into play when plaintiff absents him¬self on first hearing of suit. Where the case was fixed for arguments and the plaintiff absented himself, by virtue of O. XVII, r. 2, it is not imperative on a Court to dismiss the suit, but it can make any other order that it thinks fit. Con¬sidering that no evidence was to be led and the case was fixed for arguments only the Court could easily have heard the arguments of the other side and disposed of the case on the merits. [p. 201.
JUDGMENT.-The only question involved in this appeal is whether the order passed by the Additional District judge on the 14th August 1945 and later confirmed by Syed Ghulam Murtaza Shah, judge, by which the appellant’s suit was dismissed under O. IX, R. 8, Civil Procedure Code, should be set aside. The facts are these.
On the 9th August 1943 the appellant instituted a suit against the respondents for recovery of Rs. 2,000. Protracted proceed¬ings took place in the suit until the 14th July 1945 when it was adjourned to the 14th August for arguments. On that day the case was called on for hearing at 9 a. m but the appel¬lant was absent. The Additional District judge consequently dismissed the s-, as stated above. A quarter of an hour later the appellant appeared in Court and made an application under O. IX. R. 9, Civil Procedure Code, for setting aside the dis¬missal. It was stated therein that the petitioner’s wife was seriously ill and that he had gone to consult the doctor about her illness. This application was supported by an affidavit duly filled.