1992 PLP 1703 (CLC)

‑‑‑‑O.IX, Rr.6 & 13‑‑‑Ex parte decree, setting aside of‑‑‑On date fixed for recording of further evidence from side of plaintiff, application was submitted on behalf of plaintiff for adjournment on ground of sickness of his counsel‑‑ On application of plaintiff, his side was closed and matter was adjourned for evidence of defendant‑‑‑Application of plaintiff for re‑opening his side remained undisposed of‑‑‑Side of defendant was also closed on adjourned date of hearing because no appearance was made from his side on that date which was fixed for recording his evidence‑‑‑Application of defendant for re‑opening his side was allowed by Court without adverting to undisposed of application of plaintiff earlier filed by him for re‑opening his side‑‑‑Two applications of parties for re‑opening their closed side, involved similar difficulties from either side and common ground that their respective Advocates were unable to appear and represent them due to certain reasons, applied to both parties‑‑ Sole reason which weighed with Court in re‑opening side of defendant, namely that matter should be decided on merits rather than in absence of parties and their evidence, equally applied to non‑representation of plaintiff‑‑‑Trial Court in taking up application of defendant alone and in not even adverting to corresponding and earlier application from side of plaintiff, had erred and in doing so had refused to exercise jurisdiction conferred on him in an adequate manner. Ghulam Ali Khokhar for Applicant. Nemo for Respondent. Date of hearing: 24th April, 1991. This Revision Application is directed against the order dated 23‑12‑1989 passed by the learned IInd Senior Civil Judge, Karachi Central, whereby the said learned Judge allowed the respondent's application under Order IX, rule 13, C.P.C. recalling his order dated 2‑9‑1989 whereunder the side of the defendant‑respondent had been closed in Suit No.124 of 1988. Upon facts, the suit was initially fixed on 2‑8‑1989 for recording of further evidence from the side of the plaintiff‑applicant. However, an application was submitted on behalf of the plaintiff‑applicant for adjournment on the ground of sickness of his learned Advocate. This application was disposed of by the learned Civil Judge in such manner that the side of the plaintiff‑applicant was closed and the matter was adjourned to 2‑9‑1989 for the evidence of the defendant respondent. Since no. appearance was made on 2‑9‑1989 from the side of the defendant‑respondent, the latter's side was also closed. On 9‑9‑1989 an application was moved for re‑opening of the defendant‑respondent's side on the personal ground of a successor learned Advocate maintaining that he was supposed to appear and represent the defendant‑respondent on 2‑9‑1989 but that he could not do so because of sudden illness on which account also the defendant‑respondent could not be intimated by the learned Advocate of his inability to make appearance on 2‑9‑1989. The learned Court has allowed this application but without adverting to the earlier application dated 30‑8‑1989 filed by the applicant‑plaintiff for re‑opening of his side, as earlier closed on 2‑8‑1989, such application remaining undisposed of.

2. In spite of notices no representation has been made in this Revision Application from the side of the defendant‑respondent. I have, therefore, card Mr. Ghulam Ali Khokhar alone who represents the applicant‑plaintiff. It appears to me that the learned Trial Court erred in taking up the application of the defendant‑respondent alone and in not even adverting to the corresponding and earlier application from the side of the applicant‑plaintiff, as referred above. The two applications involved similar difficulties from either side and the same ground applied to both of them namely, inability of the two Advocates to appear for the respective parties represented by them. Likewise, the sole reason which has weighed with the learned Trial Court in re‑opening the side of the defendant‑respondent namely, that matters should be decided on merits rather than in the absence of parties and their evidence, equally applied to the non‑representation of the plaintiff‑applicant on 2‑8‑1989 regarding which due application on 30‑8‑1989 had been preferred. In not deciding such application the learned Trial Court has refused to exercise jurisdiction conferred on him in an adequate manner. Accordingly, the impugned order of the learned Trial Court is modified to the extent that the order dated 2‑8‑1989 closing the side of the plaintiff‑applicant also is recalled. This Revision Application to such extent being allowed, the case shall now go back to the learned Trial Court to proceed according to law as from 2‑8‑1989 and the plaintiff‑applicant as well as the defendant‑respondent would be free to lead such evidence, as may be adduced by them in accordance with law. There ‑will be no costs in this Revision Application. H.B.T./M-1453/K Order accordingly.