JAWWAD S. KHAWAJA, J.---This appeal impugns the judgment and decree dated 16-11-1992 passed by the learned trial Court whereby the suit of the appellant-- plaintiff was decreed for a sum of Rs.2,06,26,455. It is not necessary in this judgment to set out in detail the contents o: the respective pleadings of the parties because for reasons appearing below we propose to set aside the impugned decree and to remand the case to the learned trial Court for decision afresh.
2. In order to appreciate the case of the appellant a brief narration of the background of the case leading up to the filing of the present appeal is necessary. On 28-2-1990 the learned trial Court foreclosed the right of the appellant/defendant to cross-examine the witnesses of the respondent/plaintiff. The trial Court also directed the appellant/ defendant to produce its evidence before the evidence of the respondent/plaintiff had been completed. The said order dated 28-2- 1990 was challenged by the appellant through Revision Petition No.1365 of 1990. The said revision petition was allowed vide judgment dated 1-10-1990. As a consequence the appellant/defendant was allowed to cross --examine the respondent/plaintiff's witnesses and to lead evidence in support of its own case.
3. Thereafter the case was proceeded with by the learned trial Court. We have gone through the order-sheet of the learned trial Court for the period subsequent to the above mention revisional order dated 1-10-1990. It is not necessary to reproduce in detail the various interlocutory orders passed by the learned trial Court. It is apparent from the order-sheet that although summons were issued to the witnesses of the respondent/ plaintiff, they were not available on any date of hearing to enable the appellant/ defendant to cross-examine them. However on 24-10-1991 once again the learned trial Court closed the right of the appellant/ defendant to cross-examine the respondent/ plaintiff's witnesses. By the same order the appellant/defendant was directed to produce its evidence on 23-11-1991.
4. While passing the aforesaid order dated 24-10-1991 the learned trial Court proceeded on the mistaken belief that the revisional order dated 1-10-1990 passed by a. Learned Bench of this Court had allowed the appellant/defendant's only one opportunity to cross-examine the plaintiff's witnesses. We also note that although the attorney of the respondent/plaintiff was present before the trial Court on various dates of hearing the appellant/defendant was never given an opportunity of cross-examining him.
5. Thereafter the case was adjourned on various dates of hearing for the production of the evidence of the appellant/defendant. On 28-4-1992 the case was repeatedly called but none appeared for the appellant/defendant. As a consequence the defendant was proceeded against ex parte and the case was ordered to be listed for ex parte arguments on 3-5-1992. The appellant/defendant filed an application to seek setting aside of the said ex parte order on 17-5- 1992. The said application was moved on the ground that the learned counsel for the appellant/defendant was sick and on account of his illness could not represent the appellant/defendant before the trial Court. The aforesaid application seeking the setting aside of the ex parte proceedings was dismissed on 28-9-1992 where after on the basis the available evidence the suit of the respondent/plaintiff was decreed.
6. Learned counsel for the appellant has firstly argued that it was for the Court to summon the witnesses of the respondent/ plaintiff to enable the appellant/defendant to cross-examine them.
The said witnesses did not appear in Court which is why the appellant/defendant could not cross- examine them. This does appear to be correct because we have not been able to find any order of the learned trial Court indicating the presence of the respondent/plaintiff's witnesses for the proposes of cross-examination. Only P.W.8, who was the attorney of the respondent/ plaintiff is shown as being present in Court on various dates of hearing. However, as noted above the opportunity to cross-examine him was also not given to the appellant/ defendant. In these circumstances we find that the order dated 12-10-1991 whereby the right of the appellant/defendant to cross-examine the plaintiff's witnesses was closed was not legally justified.
7. The order dated 28-4-1992 directing ex parte proceedings against the appellant/ defendant is also not legally sustainable. The appellant/defendant in its application to have the said order set aside had disclosed good cause viz. The illness of its learned counsel to justify his non-appearance on 28-4-1998. The said order dated 28-4-1992 is also, therefore, set aside.
8. In view of the foregoing discussion the impugned judgment and decree dates 16-11-1992 are set aside. The case is remanded to the learned trial Court for decision afresh after affording to the appellant/defendant an opportunity of cross-examining the witnesses of the respondent plaintiff and after allowing the appellant /defendant a reasonable opportunity to produce evidence.
9. Before parting with this judgment we would like to note that the appellant defendant has been less than diligent in attending to this case. This is evident from the order-sheet of the trial Court which shows that the case was repeatedly adjourned at the request of the appellant/defendant. In the circumstances we consider it fair that the acceptance of this appeal should be subject to payment of Rs.50,000 as costs by appellant/defendant. Order accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.