' MUHAMMAD ALAM KHAN, J.--- Faridullah Khan petitioner has filed this civil revision under section 115, Code of Civil Procedure against the order, dated 29-3-2007 passed by learned Additional District Judge-VI, D.I. Khan through which, the learned Appellate Court, while maintaining the order of Civil Judge-I, D.I. Khan, dated 20-6-2006, dismissed the appeal filed by the petitioner with cost of Rs,3,000.
2. Briefly narrated, the facts of the case are that Faridullah Khan plaintiff brought a suit for the recovery of Rs,63,000 along with profit at the bank rate in the Court of Senior Civil Judge, D.I. Khan which was marked to Civil Judge-I, D.I. Khan and was registered as Suit No,26/1. Defendant Jamshed Ahmad was summoned who submitted a detailed written statement and on 23-6-2001 the case was posted for submission of list of witnesses. On that date, only the learned counsel for the parties were present and list of witnesses was filed on behalf of the plaintiff while the counsel for the defendant requested for time to submit list of witnesses and consequently, he was allowed by the learned Civil Judge to do the needful within three days and the case was posted for recording of evidence of the plaintiff on 15-9-2001.
3. On the said date, Syed Gohar Ali Zaidi, learned counsel for the plaintiff appeared before the Court and moved an application for withdrawal of his Vakalatnama which was consequently, allowed and Vakalatnama cancelled by the learned trial Court, and notice was issued to the plaintiff for 20- 10-2001. On 20-10-2001 the learned trial Court dismissed the suit of the plaintiff in default of appearance.
4. On 23-4-2002 the petitioner submitted an application for setting aside the order of dismissal and the ground agitated therein were that he had gone to Afghanistan and had instructed his counsel to pursue the case. In Afghanistan the petitioner became prisoner of war and thus, the learned counsel for the petitioner, without the knowledge of the petitioner, had withdrawn the power of attorney. On this the learned trial Court called for the replication from the defendant who hotly contested the allegations contained in the application of the petitioner. The restoration proceedings lingered on due to one reason or the other as on 21-7-2005 the counsel for the parties requested for adjournment which was adjourned to 12-9-2005 and subsequently on three dates either the Presiding Officer was absent or due to the paucity of time arguments could not be heard and finally on 10-11-2005 the learned Civil Judge Uzma Khurshid dismissed the application for non- prosecution.
5. On 1-12-2005 the petitioner again submitted an application for restoration of the same. The learned trial Court called for the application and after hearing the learned counsel for the parties, dismissed the application vide order, dated 20-6-2006 against which the petitioner filed an appeal and the learned Additional District Judge-VI, D.I. Khan maintained the order of the Civil Judge and dismissed the appeal with special cost of Rs,3,000. Hence, the present revision petition.
6. It was argued by the learned counsel for the petitioner that the subsequent application filed by the petitioner was for the restoration of the application earlier dismissed in default and the learned trial Court ought to have restored that earlier application because for the application for restoration of the earlier application dismissed in default the period of limitation is three years under Article 181 of the Limitation Act.
7. On the other hand, Mr. Abdul Qayyum Qureshi, learned counsel for the respondent submitted that the absence of the petitioner was intentional and no sufficient cause was shown for the restoration of the suit dismissed in default.
8. I have gone through the revision file and the documents annexed with it.
9. Without going into the detailed controversy, suffice it to say that the learned trial Court has rejected both the applications summarily without affording an opportunity of hearing to the parties. The law is crystal clear on the point that when disputed questions of facts are involved, then, it is the bounden duty of the Court to afford an opportunity to the parties to lead pro and contra evidence in the shape of proof and disproof as held in the case of Hassan Din and another v. Jalal Din and 2 others 1992 CLC 33 (Lahore).
10. Non-affording an opportunity to the parties to lead evidence is violative of the maxim, "audi alteram partem' and the parties have a vested right to prove the allegations and disprove the counter allegations by leading evidence.
11. Resultantly, this revision petition is accepted, the impugned orders f the Courts below are set aside and the case is remanded back to the learned Civil Judge-I, D.I. Khan with the direction to afford an opportunity to the parties to lead evidence in the shape of proof and disproof, on the application for restoration of the suit dated 23-4-2002 which shall be deemed to be pending and pass appropriate orders on this application as well as the subsequent application dated 1-122005.
No order as to costs. The parties are directed to appear before the trial Court on 21-6-2008.