2007 PLP 694 (CLD)

KHILJI ARIF HUSSAIN, J.

Learned counsel for the plaintiff filed an application under Order IX , rule 9, C.P.C., which is supported by the personal 'affidavit of the learned Advocate to recall the order dated 28-3-2006 when the suit was dismissed for non-prosecution. On the date when the suit was dismissed for non-prosecution the same was listed for: (1) For further orders. As per order dated 12-2-2006 two weeks' time was allowed for filing appropriate, application for bringing the L.Rs. of defendant No.4 but he failed to do. (2) For order on C.M.A. 2037 of 2006 (under Order XXIII, Rule 1, C.P.C.). Heard Mr. Muslim Shahmim, learned Advocate for the plaintiff, and Mr. Nisar A. Mujahid learned Advocate for the defendants Nos.1 and

8. Mr. Muslim Shahmim, learned Advocate for the plaintiff, argued that on the date when the matter was listed for hearing he could not attend the matter due to some urgent personal engagements and his absence was due to bona fide reason. Learned Advocate further argued that the suit was wrongly dismissed on 28-3-2006 as same was not listed for hearing. In support of his contention learned counsel relied upon the case of Muhammad Afzal v. Small Business Finance Corporation and 4 others 1997 CLC 1080; Mst. Ghulam Sakina and 6 others v. Karim Bakhsh and 7 others PLD 1970 Lahore

412. Mr. Nisar A. Mujahid, learned Advocate for the defendants Nos.1 and 8, took me to the history of the case and argued that plaintiff failed to pursue the matter diligently his part of performance and neglected to attend;" the matter on number of dates of hearing. Learned Advocate argued that the matter was listed for final disposal on 31-8-2004, 13-9-2004 and 28-9-2004 and accordingly on the date when the suit was dismissed it will be presumed that the same was listed for final disposal. In support of his contention learned counsel relied upon the cases of 2002 CLC 875: 2001 MLD 890 and 1991 KLR

606. I have taken into consideration respective arguments advanced by the learned Advocates for the parties, perused the record. From perusal of the record it appears that plaintiff Bank filed suit for recovery of Rs.143,494,111.20 against the defendants. On failure of defendants to file the amended application for leave to defend as required under the Financial Institutions (Recovery of Finances) Ordinance, 2001, suit was ordered to proceed ex parte against the said defendants. On 13-9-2004 matter was listed for final disposal and adjourned to 28-9-2004. On 28-9-2004 after arguments were heard, matter was reserved for order but on 4-10-2004 learned Judge order to be fixed for hearing as order dated 17-5-2000 was not complied. Vide order dated 17-5-2000 plaintiff was directed to file Statement giving details of Account. Matter thereafter was listed for rehearing on 21-10-2004, and on 18-11-2004, and 30-11-2004 when an application under Order I, rule 9, C.P.C. was filed by defendant No.1 with a prayer to implead legal heirs of defendant No.4 as party in the proceedings. On 22-12-2004 notice was ordered to be issued to the parties through bailiff as well as through registered post. On 1-6-2005 Chaudhry Muhammad Jamil Advocate appearing for the plaintiff filed an application for withdrawal of his 'Vakalatnama and accordingly office was directed to issue notice to the plaintiff. On 16-8-2005 notice was ordered to, be repeated to the plaintiff. On 23-9-2005 when C.M.A. 8767 of 2004 was listed for hearing Mr. Muslim Shahmim Advocate for the plaintiff sought time to file objection to the listed application. On 12-10-2005 learned Advocate for the defendant was directed to file death certificate of the deceased defendant No.4. On .1-11-2005 and 22-11-2005 matter was adjourned as Mr. Muslim Shahmim was not present. On 13-12-2005 CMA 8767 of 2004 (an application under Order I, rule 9, C.P.C. filed by one of the legal heirs of defendant No.4) was listed for hearing which was dismissed after hearing the parties and plaintiff was directed to file application to bring LRs of defendant No.4 on record. On 12-2-2006 none was present for the plaintiff and the matter was adjourned to 28-3-2006. On 28-3-2006 matter was listed for further order due to failure of the plaintiff to file application for bringing LRs of defendant No.4 on record as well as for an order on the application being CMA No.2037 of 2006 (an application under Order )XIII, rule 1, C.P.C.) when the learned Judge dismissed the suit as the Advocate for the plaintiff was not present. The plaintiff by his application C.M.A. No.2037 of 2006 (an application under Order XXIII, rule 1, C.P.C.) prayed that since plaintiff failed to locate the LRs of defendant No.4 he may be allowed to withdraw suit against defendant No.4. On 28-3-2006 suit was not listed for hearing of the suits but was fixed for further order due to failure of the plaintiff to bring the LRs of defendant No.4 on record and for order on an application filed by plaintiff- requesting that since LRs of the defendant No.4 could not be ascertained plaintiff may be allowed to withdraw suit against defendant No.4. Learned Judge without going through the contents of the application dismissed the suit when same was not listed for hearing. In the case of Muhammad Afzal v. Small Business Finance Corporation and 4 others 1997 CLC 1080, it was held that a suit cannot be dismissed on date fixed for hearing of interlocutory application. On the date when the suit was dismissed same was not fixed for hearing but in fact same was listed for further order on an application that the plaintiff does not want to press the suit against defendant No.4. In view of above listed application is granted and suit is restored to its original number. H.B.T./N-11/K Application granted.