'MUHAMMAD AZIM KHAN AFRIDI, J.--- This judgment is directed to dispose of First Appeal Against order dated 23-6-2009 passed by learned single judge in chamber in C.Ms. No,924-S of 2009 and 925-S of 2009 in C.S. No,881 of 2008.
2. Saif Ullah son of Mehmood Khan hereinafter referred to as the appellant has questioned the vires of order dated 23-6-2009 passed by the learned single judge in chamber of this Court in C.Ms. Referred to above whereby the same were allowed and thumb-impressions and signatures of Saifullah and Mst. Ghulam Fatima were directed to be obtained and sent to an expert for comparison.
3. Facts necessary and relevant for the disposal of the instant appeal are that Waqar-ul-Haq son of Shamas-ul-Haq hereinafter referred to as the respondents instituted a civil suit for specific performance of the agreement dated 27-8-2003. Prayers for possession, mandatory and permanent injunctions were also made by respondent No,1 in the said suit. The suit was contested by the appellant and after conclusion of evidence CMs referred to above were moved, notices whereof were issued to the opposite party for 27- 5-2009. The said C.Ms. Were disposed of by the learned single Judge in chamber vide order dated 1-6-2009 which order is reproduced hereunder for ready reference:--- "The evidence has been recorded and the local commission has sent the file after conclusion of the evidence. These applications shall be heard and disposed of while hearing the final arguments in the main suit. (underlined by us) If need arise, at the time of hearing final arguments of the main suit, thumb-impression and signatures would be sent for comparison."
' Main suit was fixed for arguments which was heard on 11-6-2009 and the learned single Judge in chamber passed the orders, relevant part whereof is reproduced hereunder for ready reference and facilitation.
"After hearing the arguments of the parties on the main suit. I am of the opinion (underlined by us) that in view of the facts mentioned in this order, which gave rise to certain doubts, it would be proper to obtain thumb-impressions and signatures of Saifullah Khan and Ghulam Fatima and be sent to some expert for comparison of their respective signatures and thumb-impressions on Exh.P2, Exh.P3 and Exh.P4. C.M. No,924-S and 925-S of 2009 are, therefore, allowed. The case be re- fixed on 29-6-2009."
' Aggrieved by the order dated 11-6-2009, partly reproduced above the appeal in hand was preferred.
4. Learned counsel for the appellant has argued that Raja Inaam Amin Minhas Advocate, counsel for the plaintiff in the original suit, got recorded his statement on 2-5-2009 wherein he closed his evidence except production of certain documents mentioned in his statement. That after recording his statement referred to above no room was left for submitting the said applications. He further argued that the learned Judge in chamber had decided the C.Ms. Without hearing of arguments and had thus deprived the appellant of opportunity of hearing. Learned counsel for the appellant, during the course of arguments, also questioned the validity of impugned order and contended that evidence in the shape of report of expert based on comparison of thumb-impressions and signatures in the case in hand would not be evidence worth reliance. Learned counsel for the appellant has placed reliance on the following case-law during the course of arguments:--- ' Imran Awan v. Ali Zafar (2007 YLR 2265), Ziauddin Siddique v. Mrs. Rana Sultana (1990 CLC 645) and Iqbal Ahmad Sabri v. Fayaz Ahmad (2007 CLC 1089)
5. On the other hand, learned counsel for respondent No,1 argued that the impugned order was based on correct appraisal of evidence. That the evidence of expert is best evidence so far as comparison of thumb-impression of a person by an expert is concerned. He further argued that the impugned judgment was neither contrary to law nor any prejudice was likely to be caused to the appellant and that the said report of expert would help in reducing errors and defects in the decision of the case. Learned counsel for respondent No,1 in support of his arguments placed reliance on the following case-law:--- zuqiqar Ali v. Muhammad. Zikria and others (1998 CLC X00 Lahore), Noor Ahmad v. Meraj Bibi (1994 CLC 479 Lahore), Sirbuland v. Allah Loke and others (1996 SCM R 575), Muhammad Yaqoob v.
Hameeda Begum and 4 others (2005 CLC 870 Lahore), Mst. Nusrat Bibi v. Muhammad Ashraf Mehr (2007 YLR 41 Lahore), Shah Muhammad alias Manna v. State (1990 PCr.LJ 1057 Lahore), Aga Wazir Abbas v. The State (2003 PCr.LJ 1353 Karachi), Muhammad Bashir and others v. Sher Muhammad (2008 YLR 147 Lahore) and Muhammad Ramzan v. Rana Talib Hussain and 6 others (2005 SD 274)
6. We have heard the arguments of the learned counsel for the parties and perused the record with their assistance.
7. Perusal of record of civil suit would reveal that the learned single judge in chamber while considering C.Ms. No,924-S and 925-S of 2009 observed vide order dated 1-6-2009 that the evidence has been recorded and that the applications shall be heard and disposed of while hearing final arguments in the main suit and if need arises at the time of final arguments, thumb- impressions and signatures would be sent for comparison. The learned single Judge in chamber while passing the impugned order dated 23-6-2009 did not hear the parties on the said. C.Ms. And, as evident from the concluding para of the impugned order, heard the arguments of the learned counsel for parties on the main suit and as such did not afford an opportunity of hearing to the parties on C.Ms. Before the disposal of the same in spite of his own express orders dated 1-6-2009.
8. It is an established and well-settled principle that a person or party has a right of hearing in his cause and orders passed without affording or extending an opportunity of hearing, adversely affecting the interest of such person or party, would tantamount to condemnation of such person or party without hearing. The learned Judge in chamber was cognizant of this principle of hearing while postponing his verdict on the C.Ms. By observing that the same would be heard and disposed of but, as evident from the record, the same were disposed of without hearing or affording an opportunity of hearing to either of the parties.
9. We are also mindful of the fact that provision of Order XLI, Rule 31, C.P.C. Requires of a Judge to give reasons while taking such decision while the impugned judgment has been based on mere opinion instead of reasons. Suffice to say that mere opinion or decision without reasons would not qualify as a judgment as contemplated under Order XLI, Rule 31, C.P.C.
10. We have carefully perused and gone through the case-law cited at bar by the learned counsel for the parties. Since the case-law relied upon by the learned counsel for the parties pertains to the merits of the case as such we need not to discuss and deliberate upon the same and would therefore refrain from doing so while disposing of the appeal.
11. For the afore-stated reasons, we are constrained to accept the present appeal and as such the impugned order dated 23-6-2009 is set aside and it is directed that the learned single Judge in chamber shall dispose of the said C.Ms. After affording an opportunity of hearing to both the parties and thereafter decide the same afresh. Parties are left to bear their own costs.