PAK CARPET INDUSTRIES LIMITED Versus GOVERNMENT OF SINDH

This revision application is directed against the Appellate Judgment dated 29‑11‑1987 whereby the appeal piled by the plaintiff was dismissed and the judgment of the trial Court, dismissing the suit, was maintained.

2. The Appellate judgment is assailed on two grounds. First, that the Appellate Court did not take into account the evidence on record nor it gave any finding on the various issues and dismissed the appeal after making general observations that the findings of the trial Court on all the issues was just and proper and, second, that an application moved by the appellant under Order 41, Rule 27, C.P.C. for additional evidence was not decided and was left pending by learned Appellate Court. Learned counsel of the parties have been heard.

3. A perusal of R & P of the Appellate Court shows that application under Order 41, Rule 27, C.P.C. was moved by the plaintiff/appellant on 9‑7‑1984 and notice for its hearing was ordered to be issued for 2‑8‑1984 and it A was adjourned from time to time for one reason or the other and thereafter, perhaps due to inadvertence, it was forgotten and main. appeal itself was heard and decided. This was extremely improper on the part of learned Appellate Court. Before hearing final arguments in a suit or an appeal, it is incumbent upon the Court first ensure that every Misc. Application filed by any of the parties stands disposed of, notwithstanding the fact as to whether the party concerned presses it or not. If it is not pressed, it may be dismissed on that account but a specific order must be passed in that regard. Since this was not done the impugned appellate order dated 29‑11‑1987 is liable to be set aside. A reported judgment PLD 1976 Kar. 1075 (Haji Ibrahim v. Ismail) is not exactly on this point but failure of the lower Court in first disposing of a pending application while deciding the main suit was one of the grounds for setting aside the order of the lower Court. As such, the impugned Appellate judgment is not maintainable on this ground.

4. 1 would, therefore, without referring to the merits of application under Order 41, Rule 27, C.P.C., accept this revision application and remand the case to learned Appellate Court with the direction that it should first decide this application, strictly on merits, before undertaking the hearing of the appeal itself. Parties are left to bear their own costs.

5. It is already a very old case and therefore learned Appellate Court shall give priority to it and shall grant adjournment only in unavoidable circumstances and not in routine manner and under no circumstances for more than ten days at a time. Parties are directed to appear before learned Appellate Court (in Additional District Judge, Karachi South) on 18‑1‑1992.

H.B.T./P‑235/K Case remanded.