' HASAN FEROZ, J.---This is a Second Appeal filed by the appellant on being aggrieved and dissatisfied with the judgment dated 25-4-2012 passed by the learned Vth Additional District Judge Karachi (East) in Civil Appeal No,13 of 2011 dismissing the appeal of appellant and upholding the judgment and decree dated 14-12-2010 passed by learned VIIth Senior Civil Judge, Karachi (East) in Civil Suit No,938 of 2005.
2. The facts in brief giving rise to the present second appeal are that the respondent No,1 filed a Suit No,938 of 2005 stating therein that the appellant and respondent No,1 were engaged in business of chick purchased by the appellant and delivered by the respondent No,1 according to the orders of appellant and the appellant used to make payments thereof. It has been further stated that up to 1-10-2003 the balance amount of Rs,7,64,464/50 was payable outstanding against the appellant and after some further payment a total outstanding amount till 1-10-2003 the balance amount of Rs,7,23,464/50 and till 30-10-2003 an amount of Rs,9,68,589/50 was payable/outstanding against the appellant and the respondent in spite of repeated/consistent requests/demands to the appellant did not receive the afore stated balance amount. After service of the summons the appellant filed their written statement denying all the allegations levelled in the plaint.
3. I have heard the learned counsel for the parties and perused the record. It has been contended by the learned counsel for the appellant that the respondent filed their affidavit in evidence and the matter was fixed for cross-examination on the attorney of the respondent and one witness namely Muhammad Aqeel-ul-Haq were cross-examined who had specifically admitted that he has not filed any documents showing the supply of chicken or amount of the said supply along with his affidavit in evidence however, the counsel of the appellant fell ill and has gone to open by- pass heart surgery on 12-11-2010 and such intimation was submitted to the Court from time to time and the appellant was out of city due to his bona fide tasks. He further contended that after his return from hospital it has come to his knowledge that the Suit of the respondent No, 1 has been decreed in favour of respondent, as such he preferred First Appeal No,13/2011 before the learned District Judge, Karachi (East) and the same was dismissed vide judgment dated 25-4-2012. He further contended that the learned trial Court as well as First Appellate Court have failed to apply their minds as the Suit of the respondent is not maintainable under the Contract Act and there was no liabilities against the appellant and further that they have not considered the documents in their true import and no chance of leading evidence or cross-examination was provided to appellant. The absence of counsel on medical grounds has also not been considered in view of the correct legal position that he has gone to open bypass heart surgery and thus was unable to proceed with the case. He has argued the matter at length and prayed that judgments and decree passed in the suit may be set aside for the purpose of the, decision of the suit on merits and appellant may be given a chance to lead evidence in the interest of justice.
4. I have also in my view the objections/counter affidavit to this appeal filed by the respondent and the submissions advanced by the learned counsel for the respondent. It has been contended by the learned counsel for the respondent that the appellant has concealed the material facts of the case as well as documents duly produced by the respondent during the proceedings of present Suit before the .Trial Court. He further contended that the appellant was given full and fair opportunity by the lower Courts and the appellant by using delaying tactics tried to prolong the proceedings. He further contended that the case of the respondent is based upon sound principle of law as well as evidence produced by the respondent during the trial and further that the trial court has rightly decreed the suit of the respondent and the same has been maintained by the First Appellate Court, therefore, the judgment of trial Court and First Appellate Court may be confirmed and the appeal of the appellant may be dismissed. The learned counsel for the respondent has further contended that in presence of concurrent findings of two lower courts the appeal of the appellant carries no weight in the eyes of law as the appellant has had ample opportunity in the trial courts as well as in the First Appellate Court.
5. I have in my consideration that a limited scope is provided under the scheme of Civil Procedure Code under section 100, whereby the decision having failed to determine some material issue of law, which may possibly have produced error in the decision of the case upon merits as the version of the appellant without being corroborated by the evidence of appellant and thus jumping to the conclusion drawn in the decisions of the two Courts below require that evidence of the appellant to be brought on record. Since the issues framed by the trial Court also require determination on the basis of evidence and for such purpose evidence of both sides ought to be before the trial Court and more specifically that documentary evidence require appraisal of pro and contra while deciding the matter.
6. I have in my view the adjournment applications moved by the counsel for the appellant dated 26-10-2010, 13-11-2010, 27-11-2010, 30-11-2010, whereby adjournment was sought on the ground of illness of the counsel due to open heart surgery and in proof thereof the medical record produced before this court from Annexure C/6 to C/9 with the present appeal, goes un-rebutted and unchallenged.
7. 1 have in my consideration that the right to fair opportunity as enshrined under Article 10-A of Constitution of Islamic Republic of Pakistan is to be afforded in accordance with law. The bona fide inability of the learned counsel for the appellant to appear on the dates is well supported by documentary evidence of illness of learned counsel as he has passed through open heart surgery and thus was incapacitated from appearance for which act of the counsel the appellant ought not to suffer B and therefore, essence of fair opportunity floats on the surface whereby the appellant counsel could not adduce the evidence of the defendant to the Suit thus in absence of providing opportunity to adduce evidence in rebuttal to the respondent's claim, essence of justice require that the appellant be afforded with chance to produce his evidence and thereupon elucidation of the matter to take place in accordance with law.
8. In view of the above legal and factual aspects it would be just and proper to allow the appellant to adduce his evidence and for that purpose this appeal is allowed, judgment and decree of both the Courts below are set aside and the case is remanded to the trial Court. It is manifestly directed that the appellant will file the affidavit-in-evidence of the defendant side within seven days of receipt of R&Ps in the trial Court, however if the appellant fails to file affidavit in evidence within 7 days, the matter may be heard and decided on merits however after filing of affidavit-in-evidence within prescribed time, the cross-examination on the defendants' witnesses should be proceeded in accordance with law and after hearing both the sides the Suit be decided on merits in accordance with law not beyond 60 days. It is further directed that no adjournments should be sought by any of the side except on reasonable ground which adjournment should not exceed three days.
' The Appeal is allowed in terms of above.