GHULAM MUHAMMAD Versus SIRAJ AHMED KHAN

1. The applicant had filed a suit for specific performance and perpetual injunction before the learned Senior Civil Judge, Moro, being Suit No.46 of 1979. On 5‑6‑1983 the junior partner of the counsel who was appearing for the applicant in the case filed an application under Order XVII, Rule 1, C.P.C. for adjournment of the case on the ground that the senior counsel was unwell and not able to attend the Court on that date. On this application the learned Civil Judge, Moro, passed an order which in his own words read as under:

2. "Perused R and P. It appears that plaintiff has deposited costs for summoning the Witnesses, although there is no application on record for summoning the same. None of the witnesses appear in the list of witnesses. Plaintiff is supposed to bring the witnesses himself, last chance was granted to bring the witnesses. Contention of the counsel for plaintiff is that he has deposited the costs but it has not returned as yet. Witnesses cannot be summoned without application and it is not there. Therefore, this further adjournment is not possible. Case is too old of 1979. Application stands refused."

3. Therefore, on 22‑1‑1984 an application under Order XVI, Rule 1 and section 151, C.P.C. was filed on behalf of the applicant before the successor of the learned Judge who had passed the earlier order requesting him to reopen the side of the applicant and also to allow him to call and examine his remaining witnesses but the application was rejected with the following observation:

4. "Heard the Advocates for the parties. The side of the plaintiff was closed by the then Senior Civil Judge, Moro on 5‑6‑1983 with cogent reasons. The present application is filed after delay of eight months. No sufficient ground is shown for re‑opening his side or there is also no plausible explanation for moving the application after such a long delay. Matter is old of 1979.

5. In the circumstances there is no merit in the application which is dismissed."

6. I have heard Mr. Ali Bux Leghari, learned counsel for the applicant and Mr. Usman Ghani Rashid learned counsel for the respondent. The only ground urged by Mr. Ali Bux Leghari is that discretion was not properly exercised by the learned Senior Civil Judge, Moro while rejecting the applicant's application under Order XVI, Rule 1, C . P. C . and the contention does not appear to be without substance. The order clearly shows that the learned Civil Judge has proceeded on an assumption that side of the applicant had been closed by his predecessor but the actual fact is that only his prayer for grant of adjournment had been refused by him. No doubt, as it is evident from the order dated 22‑1‑1984, other reasons were also assigned by the learned Civil Judge while rejecting to the application under Order XVI, Rule 1, C.P.C. but the fact still remains that the learned Civil Judge was mainly influenced by the fact that the side of the applicant had earlier been closed by his predecessor. Had the picture in the mind of the learned Judge been clear, the discretion might not have been‑exercised by him against the applicant. Consequently I allow this revision application and set aside the order passed by the learned Civil Judge, dated 22‑1‑1984 and remand the case to the learned Civil Judge for exercising his discretion properly in the matter. Mr. Usman Ghani Rashid, learned counsel for the respondent points out that this is an old case and already so much time has been taken. It is expected that 'the learned Civil Judge will dispose of the case as expeditiously as possible. There will be no order as to costs.

7. H.B.T./G‑72/K ??????????????????????????????????????????????????????????????????????? ??????????? Application allowed.