' MUHAMMAD NAWAZ ABBASI, J.---This appeal under Article 185(2) of the Constitution ofIslamic Republic of Pakistan, 1973, has been preferred against the order, dated 21-9-1995 and 28-9-1995 passed by a learned Judge of Peshawar High Court, through which Appeal No,2 of 1994 filed by the appellant was dismissed for non-prosecution and the application (C.M. No,1 of 1995) moved for restoration of the appeal was also dismissed.
2. Order, dated 21-9-1995 passed in C.C. No,7 of 1989 reads as under:-- ' "The Official Liquidator is to distribute the remaining sum of money amongst the creditors.
Adjourned to 28-9-1995.
' Appeals Nos.2, 3 and 4 of 1994. Present: Nemo for the Appellant. Dismissed for non prosecution."
' Learned counsel for the appellant has contended that the non-representation of the appellant in the appeal before the High Court on the date when it was dismissed for non-prosecution was not intentional rather the appellant remained under the impression that on submission of report by the Liquidator, notice would be given to the appellant for fixation of appeal but the appeal was fixed without such notice. The learned counsel submitted that since the claim of the appellant was not satisfied in full, therefore, the appeal was necessarily required to be disposed of on merits as the appellant, being one of the creditors of the Company under liquidation, was paid only an amount of Rs,23,892. The Liquidator having satisfied the preferential claims submitted the report of the learned Judge in the High Court in the light of the said report, passed order accordingly on 22-9- 1995. The learned Judge vide order of even date in C.M. No,1 of 1995 moved by the appellant for restoration of the Appeal bearing No,2 of 1994, which was dismissed for non-prosecution on 21-9- 1995, passed the following order:- ' "This is an application by N.-W.F.P. Employees' Social Security Institution for restoration of the Appeal No,2 of 1994, dismissed for non-prosecution on 21-9-1995: This application will serve no useful purpose in view of the order passed in C.C. No,7 of 1989. The Chambers had incorrectly interfered with the judgments of the two Courts below in exercise of revisional jurisdiction under section 115, C.P.C.
4. After hearing the learned counsel for the parties and scanning the impugned judgment we have come to the irresistible conclusion that remand of the civil revision to the High Court for decision on merits is unavoidable. The civil revision ought to have been decided by the learned Single Judge himself particularly when he had formed the view, after having discussed the entire evidence on record at length, that the concurrent findings of fact recorded by the two Courts below were the outcome of misreading of the material evidence and the evidence on record was sufficient to establish the case. Another aspect of the matter is that the observations made on certain striking features of the case and significant facets of the gift in question will certainly influence the mind of the learned trial Judge who has been directed to consider the evidence and the points arising in the case in the light of the observations made in the impugned judgment.
' For the foregoing reasons, the appeal is accepted, the impugned judgment is set aside and Civil Revision No,292-D of 1984 is remanded to the Lahore High Court, Rawlapindi Bench, Rawalpindi with the direction that it be decided afresh on merits in accordance with law as soon as possible.
Parties to bear their own costs.