1988 PLP 1340 (CLC)

M.A.M. Namazi for Appellant. Nemo for Respondent. Date of hearing: 15th November, 1987. This appeal is directed against the judgment and decree, dated 31‑5‑1977 passed by the learned VIIIth Additional District Judge, Karachi in Suit No.206/75 allowing the respondent's application under Order VII, Rule 11, C.P.C. and thereby rejecting the plaint. The brief facts leading to the filing of the above appeal are that the present appellant filed the aforesaid suit for recovery of Rs.18,468.31 under Order XXXVII, C.P.C. on promissory note. The respondent filed an application under Order XXXVII, Rule 3 read with section 151, C.P.C. on 9‑9‑1976 for leave to defend. The respondent also filed an application on or about 20‑5‑1977 under Order VII, Rule 11, C.P.C. The learned trial Court heard the arguments on the above first application and reserved the application for order. After that he heard the arguments on the above second application and allowed the same on the grounds mentioned in the order under appeal. The appellant being aggrieved by the above judgment/decree have filed the 1st appeal. The respondent was served with the notice of the appeal as was held by the Registrar on 8‑11‑1978. After that notice of intimation was sent in terms of Rule 8 of Chapter 3‑A of the Rules and Orders of the High Court of Judicature Lahore Volume V . The above Rule provide as follows:‑‑ "(3) Chapter 3‑A. Rule 8, page

3. To the proviso to Rule 8, add: Such postcard shall be sent to an address to be given by the party in response to the original notice of appeal calling upon him to furnish an address for service for the purpose of the appeal, or if he fails to give such address within one month of the service of such notice of appeal, to his address as given by the appellant in the memorandum of appeal. The posting of such postcard shall be deemed to be sufficient intimation to the party of the date fixed in the case." Since there is no other address available of the respondent, and as the respondent had already been served with the notice of appeal, in terms of the above Rule posting of the intimation would be sufficient for hearing of the appeal today. I would, therefore, proceed with the appeal as nobody has turned up for the respondent. In support of the above appeal Mr. Namazi the learned counsel has urged that before non‑suiting the appellant, the trial Court should have decided the application under Order XXXVII, Rule 3, C.P.C. filed by the respondent instead of deciding the second application under Order VII, Rule 11, C.P.C. on a ground which needed recording of evidence. There seems to be irregularity on part of the learned trial Court inasmuch as after having heard the arguments on the above application under Order XXXVII, Rule 3, C.P.C. he should have decided the question, whether the respondent was to be granted leave conditional or unconditional and after granting of the leave, he could have entertained the application under Order VII, Rule 11, C .P . C . and the same could not have been decided if there was no need of recording of any evidence on a point which was apparent from the averment of the plaint. In this view of the matter, the judgment under appeal cannot sustain, and therefore, it is set aside and the case is remanded to the learned trial Court for proceeding from the stage of hearing the respondent's above application under Order XXXVII, Rule 3, C. P .C. read with section 151, C .P .C. which would be deemed to be pending. The appeal stands disposed of in the above terms with no order as to costs. H .B .T./H‑82/K ‑‑‑‑Case remanded.