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First Appeal from Original Order No. 82 of 1986, heard on 17th January, 1987.

‑‑‑O. XLI, Rr. 17 & 19‑‑Dismissal of appeal for non‑appearance of appellant‑‑Application for restoration‑‑Appeal dismissed for default of appellant in early hours of date of hearing‑‑Application for restoration made same day and a plausible and valid reason given for non appearance‑‑Order of District Judge refusing to order restoration of appeal without any justification, held, suffered from legal infirmity and hence set aside‑‑Appeal restored and District Judge directed to decide same within two months.

‑‑‑ Controversies between the parties should be decided with due adjudication and on merits rather than throwing out them out of the Court on technical grounds.

Hasnat Ahmad Khan for Appellant.

Muhammad Aslam Nagi for Respondent.

Date of hearing: 17th January, 1987.

This as an appeal against the order of the learned Additional District Judge Okara, dated 25‑3‑1986 by which he dismissed the application of the appellant for restoration of the appeal dismissed for non‑prosecution on 12th of January, 1986.

2. The learned counsel for the appellant contended that the dismissal of the appeal by the learned Additional District Judge, Okara on 12‑1‑1986 was in the early hours at about 10 a. m. and the application for restoration was made the same day with the plea that the appellant was sitting outside the Court room and being hard of hearing could not readily enter the Court room and when his previous counsel from whom the brief had been taken back was coming out he went in the Court room and inquired about his case when he was told that the case had just been dismissed for non‑prosecution but the learned Additional District Judge did not take into consideration the above plea of the appellant.

3. The learned counsel for the appellant next contended that the application for restoration having been made the same day there was no justification for having not restored the appeal especially when the A same had been dismissed in the early hours of the day against the directions contained in the High Court Rules and Orders regarding the dismissal of suits for non‑appearance of any party.

4. The learned counsel for the respondents, on the other hand, only contended that Mr. Nawazish Ali Advocate the counsel for the appellant; having appeared when the case was called out and having stated that the brief had been taken away from him there was no occasion for having kept the case in waiting and therefore, the order of dismissal for non‑prosecution was justified.

5. Having given consideration to the controversy involved, I am of the view that the contentions raised on behalf of the appellant have force. It is well‑settled principle that controversies between the parties should be decided with due adjudication and on merits rather than throwing out the parties out of the Court on technical grounds.

6. The application for restoration having been made the same day on which the appeal had been dismissed for default and a plausible and valid reason having been given there was no justification for the learned Additional District Judge, Okara for not having ordered the restoration of the appeal. The order, therefore, suffers from a legal infirmity and must, therefore, be set aside.

7. In view of the foregoing discussion allowing this appeal I would set aside the impugned order, dated 25‑3‑1986 passed by the learned Additional District Judge, Okara and restore the appeal with a direction to the learned Additional District Judge, Okara that the appeal which now stands restored should be decided within two months. There will, however, be no order as to costs.

8. The parties are directed to appear before the learned Additional District Judge, Okara on 8th of February, 1987.

9. The Office shall ensure that the record of the case is transmitted back to the Court of learned Additional District Judge, Okara immediately so as to be available in that Court before the date fixed above.

S.Q./M‑11/L Appeal allowed.

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