1991 PLP 1766 (CLC)

This revision petition is directed against the judgment dated 22‑3‑1990 passed by the Vth Additional District Judge, Karachi, East C.M.A. No. 126 of 1989 allowing the same and setting aside the order dated 29‑5‑1989 passed by the IInd Senior Civil Judge, Karachi (East). The facts leading to the filing of the above revision are that the respondents filed Suit No. 1306 of 1989 for possession, mesne proifits and perpetual injunction against the petitioners. The petitioners resisted the suit by filing the written statement. The suit was fixed for issues on 19‑1‑1989. The respondents remained absent. The suit was dismissed for non‑prosecution. The respondents moved an application for restoration of the suit. The grounds for restoration of the suit as disclosed in the application were that the suit was wrongly dismissed as it was not fixed for hearing but only for formal date and the counsel for the respondents appeared in the Court in early hours and was marked present. The Senior Civil Judge dismissed the application and while dismissing the application, it was observed that the fixation of suit for issues which is a date of hearing and not formal. He also observed that no reason is assigned for absence of plaintiffs/respondents. Being aggrieved the respondents went in appeal before the Vth Additional District Judge. The learned Additional District Judge observed that the suit was fixed for framing of the issues which could be even framed by the Court in the absence of the parties. In that view of the matter, the appeal was allowed and the orders dated 29‑1‑1989 and 29‑5‑1989 were set aside. Hence the present revision petition. I have heard Mr. K.M. Nadeem, learned counsel for the applicants and Mr. Mirza Saeed Baig, learned counsel for the respondents. I have gone through the impugned judgment and the impugned orders. ' It is an admitted position that the suit was fixed for issues on 29‑1‑1989, In a case reported in PLD 1959 Karachi at page 143, a Division Bench of the then High Court of West Pakistan Karachi Bench held that according to the provision of Order XIV, Rule 1(5) C.P.C., the issues are to be framed at the first hearing of the suit. It is thus obvious that this date is a hearing within the meaning both of the rules of the Chief Court and Civil Procedure Code." A perusal of the affidavit of Anwar Ali Khan would show that he appeared and attended the Court early in the morning and the "peshkar" marked him present in the cause list. There is nothing to contradict the statement made by Anwar Ali Khan that he attended the Court early in. the morning and his presence was noted in the Daily Cause List. This aspect was at all not taken into consideration by the Courts below. In these circumstances it cannot be said that no one appeared on behalf of the respondents on 29‑1‑1989. In this view of the matter the judgment of the learned Additional District Judge neither suffers from any material irregularity nor is made in excess or failure of jurisdiction and as such I find no ground to interfere with the same. For the aforesaid reasons, I do not find any substance in the above petition and the same is accordingly dismissed with no order as to costs. The above are the reasons for the short order dated 17‑2‑1991 dismissing the revision petition on conclusion of the arguments. AA./G‑264/K Revision dismissed.