IMAM ALI G. KAZI, J.- This application under section 115 CPC is directed against the judgment and decree passed by the 1st Additional District Judge, Karachi (South) on 27-9-1987 in Civil Appeal No.263/85.
2. Haji Rais Ahmed, the applicant herein, had filed a suit for recovery of Rs.12,935/- on 8-12-1980 against the respondent Aslam in the Court of XXIX Civil Judge IInd Class, Karachi, and his suit was registered as Suit No.4810/80 in that Court. Respondent Aslam filed his written statement generally resisting the claim but he partly admitted in para-4 of the written statement that his father had shown that a balance of Rs.1835/- was only due and payable to his account. After the filing of the written statement, the trial Judge settled the issues and the case was listed for recording of evidence. The suit came up for the purpose of recording of evidence on 4-5-1985 Initially the suit was called at 9.45 AM on 4-5- 1985 but none was present. The suit was, therefore, adjourned to be taken up at 11 AM. The suit was again called after 11 AM, when the trial Judge passed the following order:- "None is present, though repeatedly called. The matter is fixed for plaintiff's evidence but neither the plaintiff himself is present nor his advocate. The diary shows that the last date adjournment was sought by the plaintiff's advocate which was granted as last chance. Today neither any application has been sent nor even the plaintiff is present. The suit of plaintiff is dismissed under order 17 rule 3 CPC.
Signed 4-5-1985"
3. It seems that trial Judge passed a detailed judgment on that date after recording such an order in his order sheet. A copy of that judgment has been filed in this revision application as annexure 'B'.
The applicant, being aggrieved by the judgment passed on tha date (annexure 'B') filed an appeal which was ultimately taken up by the 1st Addl, District Judge, Karachi (South) (Civil Appeal No.263/85). The appellate Judge concurred with the finding recorded by the Civil Judge and dismissed the appeal with costs by his judgment passed on 27-9-1987. It is against this judgment that the present revision application has been filed.
4. Mr. Khalid Jawed, advocate appearing for applicant, has urged the following two grounds in support of his revision application:-
(a) The trial Judge was not competent to pass an order on 4-5-1985 as recorded in the Order Sheet and subsequently pass a detailed judgment. According to him, it is only a Judge of the High Court, who can announce a judgment by a short order and write the judgment later on.
(b) Learned counsel contended that in the event, when a party to a suit fails to produce his evidence or to cause the attendance of his witnesses or to perform any other act, which may be necessary to further progress of the suit, the Court has a discretion to proceed to decide the suit forthwith under Order 17 Rule 3 C.P. According to him, decision of the suit contemplated by rule 3 of Order 17 CPC means the decision on merits. The Court, while passing a judgment under Order 17 rule 3 CPC has to consider the material available on record till that stage and pass any judgment.
In the circumstances of the present suit since the respondent had partly admitted the claim of the plaintiff, the trial Judge, ought to have decreed the suit at least to that extent.
5. Mr. Mohammad Akbar Khan, advocate appearing for the respondent, contended that both the Courts below have recorded a concurrent finding which cannot be disturbed by this Court in exercise of powers under section 115 CPC. To support his such contention he has referred to cases reported in 1982 SCM R 843; and 1984 SCM R 1022,1190 & 159. He next contended that the applicant was given sufficient time to produce evidence but was negligent in pursuing THE suit. The plaintiff is, therefore, not entitled to relief by way of the present revision application.
6. The trial Judge, in this case, as is evident from the order sheet, had passed a short order on 4-5- 1985 reproduced hereinabove. He then wrote a detailed judgment, which appears to have been signed by him on that very date. In the judgment he had discussed the facts and evidence issue- wise and dismissed the suit. He has, however, overlooked the admission made by the respondent in his written statement partly admitting the claim, lt is true that normally a concurrent finding of the two Courts below is not open to exception by way of an application under section 115 CPC, such a rule of can be practise deviated from in suits where Courts below have exercised jurisdiction not vested in them or have failed to exercise jurisdiction so vested or have acted in exercise of their jurisdiction illegally or with material irregularity. The trial Judge, in the present case, could not pass two orders as mentioned above. The only valid order that could have been legitimately passed by the trial Court is the one which is recorded in the order sheet. The order contained in the order sheet docs not deal with the material evidence on record and is a slip-shod order bereft of any reasoning, while the second order entitled, as judgment has been passed by the trial Judge illegally. In view of such reasoning, 1 am inclined to set aside both the orders and remand the case to the trial Judge to decide the suit afresh on merits. The appellate judge has also ??????????? Such a.. I find that the applicant has been negligent in pursuing his case. I would, therefore, award cost of Rs.500/- to the Advocate for the respondent. The suit will only proceed after such cost is paid to the advocate for the respondent.