1. NADEEM AZHAR SIDDIQUI, J. --- By this application (C.M.A. No. 4652/2006) the Defendaht has brayed for recalling the order dated 29.8.2005 by which the defence of the Defendant was struck of on failure of the Defendant to appear in person to complete the proceedings under Order X, C.P.C.
2. The Plaintiff filed counter-affidavit to the said application. In the counter-affidavit it has been stated that earlier application was dismissed and the second application is not maintainable. It was further started that the plea of illness is false and there is contradiction in the contents of affidavit of the learned counsel and Syed Ansar Hussain.
3. The Defendant has also filed the affidavit in rejoinder.
4. The case was fixed on 2.5.2005 when the Court has ordered for proceedings under Order X, C.P.C.
5. And directed the parties to appear in person or through advocates to answer all queries and the case was adjourned to 25.5.2005. From the order sheet dated 25.5.2005, it appears that on 25.5.2005 the Defendants and their Counsels were not present and order for personal appearance of Defendant was passed and the case was adjourned to 29.8.2005.
6. On next date since the learned Counsel for the Defendant was not able to answer the material question relating to the suit, the defence of the Defendant was struck of.
7. The order of personal appearance of the defendants was passed on 25.5.2005, when the learned Counsel for the Defendants was not present. The record shows that neither the Court has ordered for issuance of notice to the Defendants for their personal appearance nor the office has issued any notice to the Defendants.
8. From the personal of Rule 4 of Order X it appears that an order for Personal appearance of a party can only be made if the 'Counsel refuses or unable to answer material questions releated'ing to the suit. In this case the personal appearance of the Defendant Was ordered on 25.5.2005 without hearing the learned Counsel for the Defendants and there is no finding of the Court that the Counsel has refuses or unable to answer the material question relating to the suit. In the order the material questions on which the statement of the parties is to be recorded has not been specified.
9. Sub-Rule 2 of Rule 4 of Order X provides that the Court may pronounce judgment or make such order if parties fail without lawful excuse to appear in person. In this case the Defendants have no notice of the date of hearing and their non -appearance cannot be termed as without lawful excuse. Further more the Defendant in his affidavit has stated that he was not feeling well and unable to appear. This statement of fact in the counter-affidavit has not been specifically denied by the plaintiff and in the counter-affidavit it was stated that the Deponent has come forward with the false plea of illness after more than one year.
10. The plea raised by the Plaintiff that the second application is not maintainable has no force for the reason that the earlier application was not decided on merits and Was dismissed on 17.11.2003 on the technical ground that the application was supported by the affidavit filed by the learned counsel. Rule 74(2) of the Sindh Chief Court Rules provides that application not in accordance with the rule shall be returned for amendment. The party has the right to file second application after cutting the defect.
2. Adjourned to 20.9.2007. .