Order Sheet

IN THE HIGH COURT OF SINDH AT KARACHI

Admiralty Suit No. 35 of 2002

Date	Order with signature of Judge

Mr. Naveed-ul-Haq, advocate for the plaintiff.

Mr. Usman Hadi, advocate for the defendants.

Dates of hearing : 21.12.2015 and 23.12.2015.

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ORDER ON C.M.A. No. 76 OF 2013

NADEEM AKHTAR, J. – Through this application, the plaintiff has prayed that the order passed by me in the present Suit on 03.09.2013, whereby CMA No.286 of 2011 filed by the defendants for reopening the side of the plaintiff was allowed, be recalled / reviewed.

2. The facts relevant for the purposes of this application are that CMA No.286 of 2011 was filed by the defendants on 13.12.2011 praying that the side of the plaintiff be reopened and he may be recalled for examination in Court. Hearing of the said application could not take place as the learned counsel for the plaintiff either remained absent or requests were made on his behalf for adjournment on subsequent dates. In view of the above, the hearing was adjourned on two dates with a note of caution to him, however, till the date of passing of the order under review, the plaintiff did not file any counter affidavit or objections to the said application. By taking note of the above and also by observing that the evidence file and the report filed by the Commissioner show that two witnesses of the defendants were yet to be examined, the application was allowed vide order dated 03.09.2013 subject to the condition that cross-examination of the plaintiff will be restricted to the grounds urged in the said application.

3. Mr. Naveed-ul-Haq, learned counsel for the plaintiff, contended that the application filed by the defendants for reopening the side of the plaintiff could not have been allowed without hearing the plaintiff’s counsel whether counter affidavit in reply thereto had been filed or not. He further contended that as he was busy on the relevant date in an urgent matter before another Bench, he had requested a senior counsel to make a request for adjournment on his behalf. He submitted that it was admittedly not the case that he was absent on the relevant date as a senior counsel was present on his behalf. It was urged that he could not appear personally on the relevant date due to the above reason, which was not intentional or deliberate. He has sworn and filed his personal affidavit in support of this application. Learned counsel submitted that without prejudice and in addition to the above, the order in question is liable to be recalled / reviewed also on the ground that it is based on an incorrect observation that the witnesses of the defendants are yet to be examined. It was contended by him that evidence of both the parties was recorded by a Commissioner appointed by this Court, and after completing the entire exercise, a report was submitted by him which was taken on record by this Court. It was also stated by him that this Court was not assisted properly on the relevant date. In the end, it was urged that the order in question cannot be allowed to remain in the field and is liable to be recalled.

4. Mr. Usman Hadi, learned counsel for the defendants, opposed this application by submitting that this Bench cannot sit in appeal against the order in question ; the order in question is a fair and equitable order as it was passed after giving number of opportunities and finally a caution to the plaintiff to file counter affidavit to the defendants’ application, which was admittedly not filed ; in the absence of any counter affidavit by the plaintiff, the contents and averments made by the defendants in their application were rightly deemed by this Court to be correct and also as an admission on the part of the plaintiff ; and, it is the plaintiff who has to blame himself for the situation that has arisen in view of the order under review.

5. I have heard the learned counsel for the parties and have also examined the record with their able assistance. Record shows that the Commissioner appointed by this Court submitted his report on 28.04.2007 stating that he had recorded evidence of one of the witnesses of the defendants, but the evidence of the second witness could not be recorded as the plaintiff’s counsel has raised objection to the production of certain documents. The said Commissioner had returned the commission in view of the above and also as the time granted to him had expired. Vide order dated 24.12.2007, four months’ further time was granted to the Commissioner to complete the remaining exercise. Accordingly, the exercise was completed by him and report was submitted by him on 09.06.2008 along with the evidence of both the witnesses of the defendants duly recorded by him. The said report and the evidence recorded by the Commissioner was taken on record on 18.08.2008 subject to all just exceptions.

6. It appears that while passing the order under review the above mentioned first report filed by the Commissioner was taken into consideration wherein he had stated that the evidence of the defendants’ second witness could not be recorded, and the second report filed by him along with complete evidence of both the witnesses, was not noticed ; and, the order passed on 18.08.2008 whereby the said second report and the evidence were taken on record, was also not noticed. This is certainly a mistake and an error apparent on the face of the record for which the parties are not required to justify or plead their respective stances. Since the main basis of the order under review was that the evidence of the defendants’ witnesses is yet to be recorded and I have come to the conclusion that such observation was contrary to the record, I have no hesitation in holding that the said order is liable to be recalled.

7. In view of the above discussion, CMA No.76 of 2013 filed by the plaintiff is allowed with no order as to costs. Consequently, the order passed by me on 03.09.2013 stands recalled.

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J U D G E