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Petitioner: AHMAD SAEED KIRMANI VS Respondent: NATIONAL AND GRINDLAYS BANK LTD.
1989 C L C 350
1989 C L C 350 [Karachi] Before Ajmal Mian and Ahmad Ali U. Qureshi, JJ Syed AHMAD SAEED KIRMANI Appellant versus Messrs NATIONAL AND GRINDLAYS BANK Ltd and another Respondents High Court Appeal No.115 of 1987, decided on 26th April, 1988 Civil Procedure Code (V of 1908)‑‑ ‑‑‑O.IX, R.13‑‑Limitation Act (IX of 1908) Arts. 164 & 181‑‑Ex parte decree, setting aside of Judge in Chamber closed appellant s case when he was absent continuously and fixed a date for arguments‑ Appellant absented himself on that date also. Judge passed an ex parte order and appellant made application for setting aside said order which was declined on point of limitation without dilating upon the question whether sufficient cause was shown by appellant for absence No discussion was also made on question of limitation and no finding was recorded by trial Judge Order of Trial Judge was set aside and case remanded to him for hearing application of appellant under O.IX, R.13, C.P.C. after notice to parties. Appellant in person. Shujahat Ali for Respondents.
Date of hearing: 26th April, 1988. JUDGMENT AJMAL MIAN, J. This High Court Appeal is directed against an order dated 20‑4‑1987 passed by a learned Single Judge in Suit No.74 of 1973 declining the present appellant s application under Order IX, rule 13, C.P.C. for setting aside the ex parte judgment/decree for a sum of Rs.1,81,956.67 plus, costs and interests. 2. The brief facts leading to the filing of the above appeal are that respondent No.l filed above Suit No.74 of 1973 for the recovery of the above amount against respondent No.2 as defendant No.l and the present appellant as defendant No.2. The above suit was resisted by both the defendants inasmuch as the written statements were filed separately. After the framing of the issues, the suit was listed for evidence for 8‑11‑1983 when neither the defendants nor their counsel were present. The learned counsel for the plaintiff examined one witness and closed his side. The learned Single Judge also closed the side of the defendants and adjourned the case to. 10‑11‑1983 for arguments. On the latter date the defendants and their counsel were again absent. The learned Single Judge after hearing the learned counsel for the plaintiff fixed the case for judgment on 14‑11‑1983. On the latter date the above ex parte judgment/decree was passed. 3. It appears that respondent No.l filed an application under section 152, C.P.C. for amending the decree after the expiry of nearly two years and four months as per statement of the appellant. The above application, according to the appellant, was allowed on 24‑2‑1987 without any notice to the appellant or to respondent No.2. Be that as it may, the present appellant filed application under Order IX, rule 13, C.P.C. on 9‑9‑1985 (C.M.A. No.3494/1985) which was dismissed by the order under appeal on 20‑4‑1987. The appellant being aggrieved by the above order has filed the present appeal. 4. In support of the above appeal the appellant, who is in person, has urged that the learned Single Judge has not dilated upon the question, whether the appellant was able to show sufficient cause for his absence on 8‑11‑1983 and on subsequent dates. He has further submitted that in the absence of any finding on the above question the appellant s above application could not have been declined. On the other hand Mr. Shujahat Ali, learned counsel for respondent. No.1 has contended that the above application was hopelessly time‑barred inasmuch as Article .164 of the First Schedule to the Limitation Act was applicable and, secondly; sufficient cause A was not shown. Whereas, the appellant in reply has submitted that factually Article 181 of the First Schedule to the Limitation Act is applicable which provides limitation period of 3 years.
5. In our view, the learned Single Judge should have dilated upon the question whether sufficient cause was shown for the absence. In the absence of any finding on the above question against the appellant, the above application could not have been dismissed. Similarly, there is no discussion on the question of limitation and no F finding is recorded. We are, therefore, inclined to remand the case to the learned Single Judge. who may hear the above application afresh after notice to the parties .and, inter alia, may decide the above two questions in addition to the points which the parties may wish to raise for and against in respect of the above application. The order under appeal is, therefore, set aside and the case is remanded to the learned Single Judge in the above terms. However, there will be no order as to costs.
M.Y.H./A‑425/K Case remanded.