2002 PLP 332 (CLD)

Rana Rashid Akram for Appellants. S.H.K. Lodhi for Respondent. Date of hearing: 11th October, 2001. Respondent filed an application under the provisions of section 39 of the IDBP Ordinance, 1961; this application was replied by the appellants; re‑application was also filed; case was fixed for the arguments on such application, when on 10‑1‑1995, the appellants filed miscellaneous application; reply was sought from the respondent; the case was adjourned to 31‑1‑1995. As per order‑sheet, on 31‑1‑1995, reply was filed; case was fixed for arguments on 7‑2‑1995 when appellants or their counsel was not present and the learned ADJ, seized of the matter, without proceeding ex parte, against the appellants, proceeded to decide the main application under section 39 and allowed the same through the impugned order dated 7‑2‑1995.

2. It is the case of the appellants that they have been condemned unheard on 7‑2‑1995, miscellaneous application was only fixed therefore, main application under section 39 could not be disposed of.

3. Learned counsel for the respondent states that the appellants had been procuring number of opportunities on one pretext and had been delaying the matter and were also not represented on 7‑2‑1995. Learned ADJ, rightly proceeded to allow the main application of the respondent.

4. I have heard learned counsel for the parties. From the order‑sheet, it transpires that on 10‑1‑1995, appellants moved miscellaneous application; reply was sought from the respondent; case was adjourned to 31‑7‑1995. On this date, respondent filed reply and matter was adjourned to 7‑2‑1995 for arguments. It is not clear in the order, whether arguments were to be heard on main application as well. Anyhow, on 7‑2‑1995, counsel for the appellants was not present, but without proceeding ex‑pane against the appellants. Learned Court below vide impugn d order dated 7‑2‑1995, was pleased to allow this application The Court below has committed material irregularity, because it is not clear from the record, if 7‑2‑1995, was the date fixed for hearing of the main application, rather from the order‑sheet, as mentioned above, A it seems that miscellaneous application was only fixed for 7‑2‑1995, therefore, if th4 counsel for the appellants was not present on 7‑2‑1995, their miscellaneous application should have been dismissed and the main application under section 39 should have been fixed) for hearing. Accordingly, as the appellants have not been 4eard on main application, therefore, the order impugned is not Sustainable in the eyes of law. In the light of above, by allowing this appeal, the impugned order is set aside and the matter is sent back to the learned Court in appeal to re‑decide the application of the respondent under section 39 of the IDBP Ordinance, 1961 after giving opportunity of hearing to the appellants and simultaneously, the Court should also consider the miscellaneous application filed by the appellants, which were fixed for hearing on 7‑2‑1995. S.A.K./M.A.K./M‑838/L Case remanded.