1989 PLP 4480 (MLD)

Applicant present in person Abdullah Chandio for respondent. This Civil Revision Application is directed against the judgment dated 29-9-1988 passed by the District & Sessions Judge, Karachi East, whereby he affirmed the order dated 25-2-1988 of IVth Senior Civil Judge, Karachi East. The facts leading to the filing of the above revision are that the applicant filed a suit for declaration and permanent injunction against the respondent and 2 others which was decreed in his favour. The respondent moved two separate applications under Order IX Rule 13 C.P.C. for setting aside ex parte decree. The respondent filed affidavits in support of both the applications. As according to the applicant those affidavits were false, he made an application under order XIX, Rule 2 C.P.C. for cross-examining the deponent but his prayer was dismissed with special costs of Rs.1,000 vide order dated 17-7-1986. The applicant thereafter moved an application under Order XLVII Rule 1 C.P.C. seeking the review of the aforesaid order. The review application was fixed for hearing on 4-5-1987. On this date the advocate for the applicant was busy before the Special Military Tribunal at P.A.F. Base Masroor and requested a trainee advocate, Mr. M.J.A.Gazdar to request the trial Court to fix his application for hearing at 12-30 noon. However the applicant did not appear before the trial Court at the stipulated time and his application was dismissed for non-prosecution. The applicant moved an application under Order IX Rule IX C.P.C. on the next day seeking restoration of his application for review which was resisted by the respondent. After hearing both the counsel the trial Court dismissed his application vide order dated 25-2-1988. The applicant being aggrieved against the order dated 25-2-1988 filed Civil Miscellaneous Appeal before the District Judge. Karachi East. The learned District Judge, after hearing the learned counsel for the parties, dismissed Civil Miscellaneous Appeal vide judgment dated 29-9-1958 and affirmed the order of the trial Court. The applicant being aggrieved against the order-dated 29-9-1988 has filed the present revision application. I have heard the learned advocate for applicant in support of the revision application and-Mr. Abdullah Chandio, advocate appearing for the respondent in response to pre-admission notice. The applicant in person has contended that he had shown sufficient cause for not appearing at 12-30 noon on 4-5-1987. On the other hand Mr. Abdullah Chandio, learned counsel for the respondent has submitted that the counsel for the applicant was appearing before the Special Military Tribunal and it itself is not a sufficient cause for restoration of review application. It is not in dispute that the review application was fixed for hearing on 4-5-1987. The applicant has categorically stated before me that he had requested Mr: M.J.A. Gazdar, advocate to request the learned judge for fixing the matter at 12.30 noon. The applicant has submitted that he had filed an affidavit of his junior also apart from his own affidavit. I have perused the order of the trial Court. It seems that the affidavit of Mr. M.J.A. Gazdar was not filed alongwith the application for restoration. I have also perused the order of the lower Appellate Court and find that the affidavit was presented without seeking the permission of the Court. In view of this categorical statement, I am of the opinion that one more opportunity be given to the advocate to produce the affidavit of Mr. M.J.A.Gazdar before the trial Court. Mr. Abdullah Chandio has fairly conceded this position. In the interest of justice I think it is just and proper to remand the hearing of application to the trial Court for disposal in accordance with law after affording opportunities to both the learned counsel. The parties are directed through their counsel to appear before the IVth Senior Civil Judge, Karachi East on 18-2-1989. I direct the learned Senior Civil Judge to decide the application under Order IX Rule 9 C.P.C. within one month from 18-2-1989. The revision application No.284 of 1988 is disposed of in the above terms with no orders as to costs. H.B.T/H-176/K. Order accordingly.