' RANA BHAGWANDAS, J.---This petition is directed against Sindh High Court judgment, dated 30-3- 2006 allowing High Court Appeal against the judgment and decree dated 12-8-1998 passed by learned Single Judge on the revisional side of the Sindh High Court.
2. Through the impugned judgment Division Bench of the High Court while observing that the provisions of Order IX, Rule 3 C.P.C. Would not be attracted to the suit after the close of evidence and that the law leans in favour of adjudication on merits, remand the suit to the learned Single Judge for hearing arguments of the parties and to deliver judgment in accordance with law.
3. It is inter alia contended that after conclusion of evidence by both parties suit was set down for arguments of the parties but despite repeated calls counsel for both the parties were absent, therefore learned Single Judge observed that they did not wish to be heard by the Court and therefore reserved the judgment. Detailed judgment was recorded on the same day whereby respondent's suit was dismissed.
4. Respondents assailed the judgment and decree before the Division Bench of the High Court in High Court Appeal which was allowed in the aforesaid terms.
5. There appears to be sufficient force and substance in the submissions of the learned counsel that in view of plaintiff's lack of interest for advancing any arguments after the close of evidence on 10-1-1998 by the parties, if the parties did not appear to assist the Court and highlight salient features of their respective cases, the only course available to the Court was to examine the record, - evaluate the evidence and record the verdict on merits rather than to dismiss the suit for non- prosecution.
6. Leave to appeal is therefore granted to consider whether the Division Bench of the High Court was legally entitled to set aside the judgment and remand the suit for recording fresh judgment in accordance with law?
7. Operation of the impugned judgment is suspended till the hearing of appeal.