1. ' This is an appeal under section 3 of Law Reforms Ordinance, 1972 read with section 15 of Ordinance X of 1980 directed against an order, dated 30-3-1998 passed by Humble Single Judge of this Court in J.M. No,59 of 1992, "English Laboratories (Pvt.) Ltd. v. Chas A. Mendoza Pharmaceutical and another" whereby an application under Order 9, rule 13, C.P.C. Moved by the appellants for setting aside allegedly ex parte judgment, dated 14-1-1998 was dismissed along with connected Suit No,848 of 1992 "M/s. Chas A. Mendoza Pharmaceutical v. An fords Pakistan Ltd. And 3 others" on the same date hence this appeal.
2. ' Brief facts of the case are that on 14-1-1998 Suit No,848 of 1992 was fixed in Court for hearing of Miscellaneous Applications C.M.A. Nos.837 of 1992, 84 of 1993, 2403 of 1993 and for settlement of issues on which date none appeared for the plaintiff and the suit was dismissed for non- prosecution accordingly C.M.A. No,8370 of 1992 was disposed of, while C.M.As. 84 and 2403 of 1993 were disposed of as not pressed. So far J.M. No,59 of 1992, it was fixed for hearing of main application viz. J.M.59 of 1992 along with 8320 of 1992 on 2-5-1997 thereafter it was adjourned to 23-5-1997, 25-11-1997 and 14-1-1998 with the diary "same orders as in Suit No,448 of 1992". However, on 14-1-1998 J.M. Filed by respondents in this appeal was dismissed in absence of the appellant.
3. ' The impugned order would show that appellants had contested the petition by filing parawise written-statement and assailed the maintainability of petition for want of valid cause of action and the learned Single Judge after hearing the counsel for petitioner and examination of relevant pleadings of parties, dismissed the petitioner holding that it was not maintainable and it was without any merit. After dismissal of the above J.M., the appellants filed an application under Order 9, Rule 13, C.P.C. Before learned Single Judge which was heard and disposed of on 30th March, 1998 dismissing the same.
4. ' We have heard learned counsel for parties and perused the record and proceedings of J.M. As well as Suit No,848 of 1992.
5. ' Contention of learned counsel for appellants is that learned Single Judge was not competent to dismiss the said J.M. On merits on 14-1-1998 in his absence as it was fixed for hearing of C.M.A. 8320 of 1992 and not for main J.M. In support, he has placed reliance upon Qazi Muhammad Tariq v.
6. Hasin Jahan and 3 others (1993 SCM R 1949) and Atul Chandra Das and others v. Bhagbati Das and others (PLD 1967 Dacca 27).
7. ' We find no substance in the contentions of learned counsel for appellants.
8. ' The facts of cited cases are quite different and distinguishable to the facts of instant case. There is no cavil with the principles laid down in the above-cited cases. It would be observed that J.M. Was fixed on 2-5-1997 for hearing of C.M.A. No,8320 of 1992 and for hearing of main J.M. Application and it continued to be fixed so till it came up on 14-1-1998, and therefore, it could not be said that J.M.
9. Was only fixed for hearing of C.M.A. No,8320 of 1992. In the circumstances, learned Single Judge was within his powers to dispose of J.M. Application that also, when it was being dismissed after hearing the respondent in this appeal and petitioner in J.M. In favour of appellant.
10. After having not been able to satisfy this Court in respect of plea raised, learned counsel for appellant submitted that though the J.M. Of the respondent has been dismissed in his favour but certain observations have been made against the interest of the appellant. The counsel for respondent in reply has submitted that the so-called observation allegedly detrimental to the interest of the appellant are not sought by appellant to be expunged but the appellant has only prayed for setting aside of the impugned order and order passed on J.M., dated 14-1-1998 which was decided in favour of the appellant, therefore appeal was liable to be dismissed.
11. ' Paras. 3 and 4 of impugned order run:--- "3. Upon hearing learned counsel, I am really amazed to find any rationale for this application as by dismissal of the J. Misc. It is the petitioner who may be aggrieved from the order and not the respondent in whose favour the decision was made. Learned counsel is unable to cite any ground for setting aside the order which has caused the least prejudice to the respondent-company."
12. "4. As to the engagement of the counsel before another Bench, there can be hardly any grudge but propriety demands that the council should have intimated this Court about the reason for his absence through someone else, by an adjournment application or even by leaving a slip with the Reader of the Court so that the case could have either been kept aside or adjourned. In case, cases pending over six years are allowed to be left unattended and preference given to other cases of the choice of a party, the Court is not supposed to wait or feel helpless in proceeding with the case particularly when there is neither any miscarriage of justice nor least prejudice to the interest of the respondents."
13. ' We find substance in the submissions made by the learned counsel for respondents. No prayer is made even before us for ex-pungent of the observations said to be detrimental or prejudicial to the interest of the appellant.
14. ' In view of aforesaid reasoning's we find this appeal has no merit which is hereby dismissed along with listed application. However, appellant can pursue his remedy before learned Single Judge for the ex-pungent of the said observation if available to him in accordance with law.