1999 PLP 323 (CLC)

The learned counsel for the petitioner has submitted that the petitioner/plaintiff had filed a petition for insolvency before the learned Insolvency Judge, Lahore. That petition was pending trial and was fixed for evidence, which took about two years, but the petitioner could not examine the evidence. Last opportunity for producing the evidence was given subject to payment of Rs.200 as costs and the petition was fixed for evidence of the petitioner on 30‑4‑1985. However, on that date, the petitioner did not turn up nor he produced his evidence in the main petition. The same was accordingly dismissed in default.

2. The petitioner applied for restoration of his petition vide application moved on 20‑5‑1985 in which it was pleaded that the petitioner came to the Court on the date of hearing i.e. 30‑4‑1985 but came to know that the matter was fixed for evidence. He went back to his village in order to bring the witnesses, but in the meantime his petition was dismissed in default when he reached back at about 12‑00 noon on the same date. This fact was denied by the respondents in their reply to the petition with the contention that the absence of the petitioner from the Court was intentional. The learned trial Court without framing an issue on the controversial point i.e. whether or not the absence of the petitioner was intentional or whether there was a sufficient cause for the restoration of the main petition, dismissed the petition for restoration vide detailed order, dated 28‑6‑1988.

3. The petitioner feeling aggrieved of the aforesaid order filed an appeal which came up for hearing before Mr. Muhammad Munir, the then learned Additional District Judge, Lahore, who dismissed the same in limine vide his order recorded on 1‑8‑1988.

4. This revision petition is directed against the aforesaid orders on the ground that the same were illegal as mandatory provision of law was not followed in framing the issue on the controversial point raised in the petition and reply submitted by the respondents. Likewise petitioner was highly prejudiced as he was not allowed to examine any witness in support of his case that his absence from the Court was not intentional and that the same was occasioned because he acting bona fide went to the village to fetch evidence to comply with the order of the learned trial Court, but in the meantime his application was dismissed, when he returned to the Court alongwith the witnesses. Reliance was placed on National Bank of Pakistan v. The Additional District Judge and 2 others reported as PLD 1985 Lah. 326.

5. It is clear from the above that the controversy raised before the learned Courts below was not reduced into issue nor petitioner was given an opportunity to lead his evidence in respect of his contentions.

6. The learned Assistant Advocate‑General has submitted that the matter is very old and that the orders of Courts below are admittedly not legally firm as the Courts below failed to frame any issue on the controversial point or to allow the parties to lead their evidence in support of their contentions. It is, therefore, submitted that in order to avoid further delay in the matter, the revision petition be accepted and the orders passed by the Courts below be set aside and the insolvency petition be restored with a direction that the same be decided within a time limit.

7. The learned counsel for the petitioner has no objection to the aforesaid proposition.

8. In view of the above situation, and since orders of the Courts below were contrary to law so far as issues were not framed on the controversial points and the parties were not allowed to lead evidence in support of their contentions, therefore, the same are set aside. Instead of remanding the petition for restoration, it would be just and proper that the main insolvency petition be restored to its original number and be proceeded with from the stage at which the impugned order dismissing it was passed. The petitioner shall be given one clear opportunity to examine his evidence subject to payment of Rs.200 as costs which was a condition precedent for examining the evidence before dismissal of his main petition due to his absence. The insolvency petition will be taken up for trial by the learned trial Court (Senior Civil Judge, Lahore) with the direction to decide the same within six months after providing opportunity to the parties to examine their evidence as directed above.

9. The revision petition is accepted in the above terms. The parties are however, left to bear their own costs. Parties are further directed to appear in the Court of learned Senior Civil Judge, Lahore on 24‑10‑1998. Q.M.H./M.A.K./A‑347/L??????????????????? ??????????????????????????????????????????????? Revision accepted