1989 PLP 1021 (MLD)

Syed Inayat Ali for Respondents. Date of hearing: 18th October, 1988. This revision application is directed against the judgment and decree dated 25‑10‑1982 passed by the V11Ith Additional Judge, Karachi whereby he dismissed the appeal and affirmed order dated 1‑3‑1981 passed by the IVth Civil Judge, Karachi. The facts leading to the filing of the above revision are that the applicant filed a suit for declaration and injunction against the respondents. It is alleged in the plaint that he was entitled to a pension equal to 50% of the pay as per Pension Rules 1974. On receipt of summons the respondents filed application under Order 7, Rule 11, C.P.C. for rejection of the plaint on the ground that the Civil Court had no jurisdiction to entertain the suit and the applicant could seek relief from the Service Tribunal under the Service Tribunals Act, 1973. On 4‑2‑1981 copy of the application was supplied to the applicant and the case was adjourned to 12‑2‑1981 for filing of objections. On 12‑2‑1981 case was Adjourned to 28‑2‑1981. On 28‑2 1981 the applicant was not present but sent an application for adjournment. The learned trial Court adjourned the case to 1‑3‑1981. On 1‑3‑1981 the learned counsel for the respondents argued the case. The applicant was not present. The application was allowed and the plaint was rejected. The applicant being aggrieved filed appeal against the order dated 1‑3 1981. The Learned Additional District Judge by his judgment dated 25‑10‑1982 dismissed the appeal. The applicant being aggrieved had preferred the present revision. I have heard the applicant in support of the revision and Mr. Syed Inayat Ali, Advocate for the respondents. I have perused the case diary and the impugned order dated 1‑3‑1981. A perusal of case diary dated 28‑2‑1981 shows that the applicant was not present and he did not file counter‑affidavit. The case was adjourned to 1‑3‑1981. The applicant stated at the Bar that he sent an application for adjournment and the learned trial Judge did not pass any order thereon. The applicant submitted that he produced the copy of application before the appellate Court and raised the point before the appellate Court. Mr. Syed Inayat Ali learned counsel for the respondents fairly conceded that application under Order 7 Rule 11 C.P.C. was allowed in the absence of the applicant and without hearing him. Both the learned counsel jointly submit that this is a fit case for remand. The request is just and proper in the circumstances of the case. By consent of the parties the impugned order dated 1‑3‑1981 and judgment dated 25 10‑1982 are set aside. The case is remanded to the Court of 2nd Senior Civil Judge, Karachi South for disposal of application under Order 7 Rule 11 C.P.C. in accordance with law after affording full opportunity and allowing the applicant to file counter‑affidavit if he so desires. The parties are directed to appear before the trial Court on 17‑11‑1988. Revision Application No.32 of 1983 is disposed of in the above terms. H.B.T./M‑747/KCase remanded.