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Appeal No. WCK-120 of 1975, heard on 13th November 1975.

-- S. 30-Appeal-Order of dismissal of application for non-prosecu tion-Date of hearing fixed without notice to parties-Commissioner's order regarding dismissal for non-prosecution, in circumstances, held, bad in law-Appeal accepted and case remanded.

S. A. Channa for Appellant.

Muhammad Abdul Qadir for Respondent No. 1

Nemo for Respondent No. 2.

Date of hearing: 13th November 1975.

This appeal has been filed under section 30 of the Workmen's Com pensation Act against the order of the Commissioner dismissing the claim for non-prosecution.

2. The appellant was in the employment of the respondent. It was alleged by him that he had suffered an injury in the course of and arising out of employment. Medical Certificate was obtained assessing the per manent partial disability at 20 %. The respondent was approached for the payment of compensation but of no avail. Consequently a claim was filed before the Commissioner.

3. The appellant appeared in the Witness-Box. His evidence was record ed on 10^th April, 1975 and the case was adjourned for 19^th April, 1975 when his evidence was concluded. Since the doctor was not in attendance the case was postponed to 30th May 1975. On the adjourned hearing the parties were present but the doctor was absent as it seems that he was not served. Consequently it was ordered that the summon for the doctor be deli vered to Mr. Channa, the counsel for the appellant, and the case was adjourn ed to 16th May, 1975. The case diary does not show what had happened on 16^th May, 1975 as there is no such diary of that date. The case was taken up pp 23rd May, 1975 but the parties were absent. The ease was adjourned to 29^th May, 1975. Again the parties were absent and the case was further post poned to 12^th June, 1975. The parties still remained absent and, therefore, the claim was dismissed for non-prosecution. Aggrieved by this, the present appeal had been filed.

4. It has been urged on behalf of the appellant that on 16^th May 1975, the parties as well as their counsel were present but the file of the case was not traceable and no date was given. It was further urged that on the subsequent dates the case was taken up without any notice to the parties and, therefore, the dismissal order was not justified.

5. It has been admitted by the learned counsel for the respondent that on 16^th May 1975, the parties and the counsel were present and the file was not traceable but he did not remember whether any date was given as his previous diary had been lost. He also admitted that he was absent on the subsequent dates. Mr. Channa has stated that since the case diary was missing on 16^th May 1975, no date was given. There is no reason to disbelieve his statement. It is, therefore, plain enough that the subsequent dates were fixed without any notice to the parties. Consequently the order of dismissal for non-prosecution is bad to law and cannot be supported.

6. In result I allow the appeal and set aside the order of the Commis sioner. The case is remanded to the Commissioner for disposal on merits after recording the evidence, if the parties may desire to tender.

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