2006 PLP 1558 (MLD)

ANWAR ZAHEER JAMALI, J.

Reference made by the IIIrd Senior Civil Judge, Karachi Central is allowed, consequently, file of Suit No.1433 of 2000, which is consolidated with Suit No.704 of 2000 is retained and tagged with this suit. 2 to

4. Mr. K.B. Bhutto submits that, according to the research of case-law made by him, the suit, which is ripe for final arguments, can be decided by the Court on merits without hearing the arguments of the learned counsel, if they are not appearing. He has made reference to the case of Allah Rakha v. Muhammad Yousuf (PLD 1991 SC 601). The relevant observations read as under: "We observe that the same plea was raised before the learned Single Judge also but it was repelled relying on the judgment of the West Pakistan High Court in Abdullah and another v. Mian Tafazzul Hussain and another (PLD 1961 Baghdad-ul-Jadid 58). In this case too, the question was whether the hearing of a case concluded only after the conclusion of the arguments and it was held that the hearing of arguments is not enjoined on the Court by the Civil Procedure Code 1908 and all that can be said on the language used in Rule 2 of Order XVIII, C.P.C. is that if the parties or their counsel want to address arguments, the trial Court has to give them an opportunity to do so, but the hearing of the argument is not essential before disposing of the case. It was further held that if, the arguments are not heard before the judgment is passed the hearing will, for the purpose of Order XXII, Rule 6 of the Civil Procedure Code, 1908 be deemed to have concluded with the conclusion of the evidence of the parties, but if the arguments are heard, the stage at which the hearing concludes is the one when argument concludes."

2. To controvert the above position, Mr. Talat A. Aslam, learned counsel for defendants Nos. 1 to 3, has placed reliance on the case of Fazal Ahmed v. Abrar Hussain (1992 MLD 458), wherein view taken by the Court is that even at the stage of final arguments the suit can be dismissed for non-prosecution.

3. Mr. S. Ali Kausar Shah, learned counsel for plaintiffs submits that Suits Nos. 704 of 2000 and 1433 of 2000 were consolidated, vide order, dated 27-8-2001 and in terms of such order, Suit No.704 of 2000 being earlier in time, was treated as leading suit. As a result, the whole evidence in respect of two consolidated suits was recorded in Suit No.704 of 2000, while due to change in pecuniary jurisdiction, the other Suit No.1433 of 2000, which was valued in the sum of Rs.25,00,000 was later on transferred to the District Court for further proceedings. During the process, when the plaintiffs in Suit No.704 of 2000 were contemplating for seeking transfer of Suit No.1433 of 2000 to this Court, so that the risk of conflicting judgments may be avoided and consolidated judgment may be passed by this Court, having jurisdiction to try both the suits, present suit was dismissed for non-prosecution in absence of the learned counsel. He therefore contended that due to lack of knowledge about dismissal of suit for non-prosecution on 22-8-2003, restoration application could not be submitted in time and now another application for condonation of delay in filing of restoration application is also moved. He further contended that in the facts and circumstances, mentioned in the two applications and the supporting affidavits thereof, a case for condonation of delay in filing of application and for restoration of the suit, is made out, as law favours adjudication of case on merits rather than technicalities.

4. Such request for restoration of this suit is strongly opposed by Mr. Talat A. Aslam as, according to him, this Court was not bound to wait for re-transfer of Suit No.1433 of 2000 from the lower Court to this Court, being consolidated to the present suit. However, learned counsel did not dispute that there was no subsequent order passed in these suits for de-consolidation of two suits and that passing of separate judgments in the two suits would have taken risk of conflicting judgments.

5. Considering all the above discussed factual and legal aspects of the case, more particularly the observations of the Hon'ble Supreme Court in the case of Allah Rakha (supra), the two applications listed at Serial Nos. 2 and 3 are allowed, but subject to the payment of costs of Rs.3,000 to the learned counsel for defendants Nos. 1 to 3.

6. Before parting with this order, this Court records its appreciation for the valuable assistance provided in this case by Mr. K.B. Bhutto, Advocate. H.B.T./A-87/K Applications allowed.