2010 PLP 3080 (YLR)

SH. AHMAD FAROOQ, J.

This regular first appeal is directed against judgment and decree dated 20-6-2006, passed by the Civil Judge, Lahore in favour of the respondent and against the appellant, in a petition under section 20 of the Arbitration Act, 1940, whereby the award submitted by the sole arbitrator was made as Rule of the Court.

2. The lis in hand is the outcome of an agreement dated 3-9-2001 purportedly entered into between the parties for supply of Cardphone Modem 807(1)P/I, manufactured by GPTE of China along with Line Protection Unit (LPU), Network. Management System (NMS) software and dedicated modem for NMS. A dispute having arisen between the parties, led to the filing of petition under section 20 of the Arbitration Act, 1940 by the respondent/ Company for recovery of Rs.50,76,790 by way of appointing a sole Arbitrator and making the award as Rule of the Court. The appellants also filed a petition under section 40 of the Arbitration Act, 1940 for recovery of certain amount on the basis of contract dated 3-11-2001. Both the suits were consolidated by the learned trial Court on 2-1-2003.

3. The learned trial Court appointed Mr. Hassnain Mehdi, as arbitrator, who filed his award on 29-10-2003, against which objections were filed by the appellants. The respondent controverted the objections filed by the present appellant, whereupon the learned trial Court framed the issues.

4. The learned counsel for the respondent made a statement before the learned trial Court, on 12-7-2004, to the effect that as only the onus of issue No. 5 is on the plaintiff, and this issue being legal, he would not like to produce any evidence. The case was thus, adjourned for the evidence of the appellant/respondent. On 16-9-2004, when the case was fixed for evidence of the appellant/respondent, an application was moved for submission of amended list of witnesses. The case was adjourned to 2-10-2004 due to the leave of the Presiding Officer. On 2-10-2004, the learned trial Court without obtaining reply to the application from other side, rejected the application and fixed the case for evidence of the appellant/respondent. The appellant/respondent filed revision against the aforesaid order dated 2-10-2004, in which record of the trial Court was summoned. During the pendency of the revision petition, the original record of the petition remained in custody of the revisional Court of learned Additional District Judge. Due to non-availability of the original record of the case, the trial could not proceed further. The revision petition was fixed for orders on 30-11-2004, when the learned Additional District Judge, seized of the matter, was transferred, without substitute, and thereafter, the matter remained pending before different Presiding Officers for a considerable long time. The appellant/ respondent asserted that on 15-7-2006, he came to know that the learned trial Court through a consolidated judgment, dated 20-6-2006, made Award dated 29-10-2003 as Rule of the Court and passed a decree accordingly, while the petition filed by the appellant under section 40 of the Arbitration Act, 1940 was dismissed. Hence, this regular first appeal.

5. This appeal was admitted to regular hearing on 5-9-2006, in which notice was ordered to be issued to the respondent. The respondent could not be served through ordinary mode. Hence, service of the respondent was ordered to be effected through publication of citation in the Daily newspaper. Citation was published in the Daily Jang, dated 21-10-2009. Despite that, no one appeared on behalf of the respondent. Consequently, vide order dated 13-10-2009, the respondent was proceeded ex parte.

6. It is contended by the learned counsel for the appellant that the learned trial Court on receiving record from the learned Appellate Court on 27-5-2006, did not issue any notice to the appellant/ defendant for appearance or production of evidence on 20-6-2006. The learned counsel also submitted that the right of the appellant/company to produce evidence has been struck off without affording an opportunity to produce evidence in support of its claim. The learned counsel neat contended that the impugned judgment has been passed at the back of the appellant, which is against law and facts on record. The learned counsel for the appellant also contended that no material evidence was available on record to adjudicate upon the controversy between the parties, but even then the learned trial Court resorted to decide both the suits, which resulted in grave miscarriage of justice. In support of his contentions the learned counsel has relied upon the cases of Amanullah Khan and 5 others v. Mst. Hayat Bibi and 4 others (2006 CLC 1546), Mst. Nazima Batool v. Sabar Ali Shah (2004 CLC 1175), Alam v. Mirza Hashim Baig (2004 YLR 818) and Ghulam Mustafa and another v. Muhammad Aslam (2007 CLC 343).

7. Arguments heard. Record perused.

8. Admittedly, the record of the case was received back by the learned trial Court on 27-5-2006 and on the said date, nobody on behalf of the appellant was present before the learned trial Court. No notice was issued to the appellant/defendant company to join the proceedings being conducted in the two cases. Even then, the learned trial Court adjourned the case to 20-6-2006 for evidence of the appellant/ defendant. On the adjourned date i.e. 20-6-2006, neither anybody appeared on behalf of the appellant company nor was any request made for adjournment. In such circumstances, the learned trial Court was not justified in closing the right of production of evidence of the appellant/ defendant. Furthermore, in view of the statement of the learned counsel for the respondent/plaintiff/Messrs World Datacom, who opted not to produce- any evidence in the first instance and after striking off the right of the appellant/ defendant, to produce its evidence, there was no material evidence available on record on which the learned trial Court could adjudicate upon and give its findings. However, the learned trial Court in absence of any evidence passed the impugned judgment. While passing the impugned judgment the learned trial Court perhaps has not kept it in mind that the law favours decisions on merits and it does not permit technicalities to come in the way of safe administration of justice.

9. For what has been discussed above, the impugned judgment of the learned trial Court, dated 20-6-2006, is set aside and the case is remanded to the learned trial Court for deciding it afresh, after affording both the parties reasonable opportunities to produce this respective evidence. A.R.K./H-13/L Case remanded.