IN THE COURT OF DISTRICT AND SESSION JUDGE (EAST)

AT KARACHI

CIVIL REVISION NO. ___OF 2009

Echo West International (Pvt.) Limited

Having it Registered office at
Bungalow No. 327
KDA Scheme No. 1
Main Karsaz Road
Karachi ……………..……............. Applicant

Versus

Quaid – e – Jauhar s/o Nooruddin

Carrying on his business in the name and style
H.H. Trading Corporation
C/1, Plot No. B-1 & B-2
Sector 16 Korangi Industrial Area
Karachi ………………..………….. Respondent

REVISION APPLICATION UNDER SECTION 115 READ WITH

SECTION 151 OF CIVIL PROCEDURE CODE, 1908

Respectfully submitted:

1. Being aggrieved from and dissatisfied with the order dated April 13,
2009 (“Impugned Order”) passed by the learned 1st Senior Civil
Judge at Karachi (East) whereby the Applicant’s Application under
Section 12(2) read with Order IX Rule 13 and 151 CPC was dismissed
without consideration the arguments and relevant record. The Appellant
prefers this Revision on the facts and grounds stated hereunder.

Certified copy of the Impugned Order is attached as Annexure “R-1”.

2. That the Applicant is a private company engaged in the business of

construction and contracting of various civil and other works in respect

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 of such employers who require specialized work to be carried out. This
Revision Application has been filed through
______________________ s/o____________________ who is an
authorized representative of the Applicant.

Board Resolution is attached as Annexure “R-2”

3. The Respondent is doing business as Sole Proprietor in the name M/s.

H.H. Trading Corporation.

4. That M/s. LASMO Oil Pakistan Limited (“Client”) entrusted a

contract to the Applicant for construction of Workshop and Storage
building which work was given to the Respondent as Sub-Contractor.
The Respondent abandoned the work in incomplete position sometime
in the last week of December 1995, had received some over-payments
as well by that time, with the result that the balance work was
completed by the Applicant through other sources by incurring extra
costs.

5. That due to this act of the Respondent the project was not completed
within the prescribed and settled period in between the parties and the
project could not be handed over to the Client and was handed over to
after delay of 20 days. The Client of the Applicant debited an amount
of Rs. 1,986,839.00 under their letter dated 03-02-1996.

6. That for the recovery of Rs. 1,986,839.00 the Applicant filed suit
bearing No. 1028 of 1998 in the Hon’ble High Court of Sindh at
Karachi against the Respondent. After filing of this suit the Respondent
has filed a counter suit bearing No. 1304 of 1998 in the Hon’ble High
Court of Sindh at Karachi as counter suit.

7. That both suits were transferred under administrative order due to

change of pecuniary jurisdiction of the Civil Courts and renumbered in
the Courts of Senior Civil Judges. Applicant’s Suit No. 1028 of 1998
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 (New Suit No. 513 of 2003) (“Applicant’s Suit”) was transferred in
the Court of Hon’ble 8th Senior Civil Judge at Karachi (East) while the
Respondent’s Suit No. 1304 of 1998 (New Suit No. 213 of 2002)
(“Respondent’s Suit”) was transferred in the Court of Hon’ble 1st
Senior Civil Judge at Karachi (East).

8. That the Court motion notices were not served upon the Applicant
properly and the Applicant’s Suit was dismissed while the
Respondent’s Suit was decreed. The Applicant filed an Appeal in its
suit against the order of the 8th Senior Civil Judge at Karachi which was
allowed by the Hon’ble 3rd Additional Distract & Session Judge at
Karachi (East). The Respondent has filed Civil Revision bearing No. 56
of 2008 which is pending in the Hon’ble High Court of Sindh at
Karachi.

Copy of the Plaint in Applicant’s Suit, Order of the 3 rd Additional

District and Session Judge Karachi (East), memo of Revision
Application filed by the Respondent are attached as Annexure “R-2”
to “R-5”

9. That the Respondent’s Suit was proceeded exparte and Judgment and
Decree passed by the Hon’ble Senior Civil Judge at Karachi (East) and
filed Execution Application No. 11 of 2006 (“Execution
Application”) which is pending for execution of decree.

Copy of the Judgment & Decree and Execution Application is attached

as Annexure “R-6” to “R-8”

10. That the Applicant has paid the entire amount to the Plaintiff, however
the Plaintiff has filed this suit as counter blast to the Applicant’s Suit
just to pressurize the Applicant.

Copy of the plaint of the Respondent’s Suit is attached as “Annexure “R-9”.

11. That as the Applicant came to know about the Decree and Execution
Application only through publication and then the Applicant has filed

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 an Application under Section 12(2) read with Order IX Rule 13 and
151 CPC in Respondent’s Suit which was dismissed by the learned trial
Court vide Impugned Order dated April 13, 2009 without considering
the facts of the case. The Applicant has also filed written statement
along with the Application under Section 12(2) read with Order IX
Rule 13 and 151 CPC to save the precious time of the Hon’ble Court.

Copy of Application under Section 12(2) read with Order IX Rule 13

and 151 CPC filed by the Applicant is attached as Annexure “R-10”

12. That the Impugned Order is liable to be set aside inter alia on the
following grounds:

GROUNDS

(a) That the Impugned Order dated April 13, 2009 is illegal, bad in law and
facts both therefore is not sustainable in eye of law.

(b) That the order passed by the learned trial Court is arbitrary whimsical
and has been passed without application of an independent or judicial
mind, in utter this regard to the material available on record and based
on wrong and non application of law.

(c) That the learned trail Court did not consider that as per schedule of
payment annexed with the plaint as Annexure “A” which clearly shows
at serial No. 6 and 7 that the running bills shall be paid on monthly
basis according to the work done in 4 parts and full and final payment
of 10% after completion of entire job at the satisfaction of the
Applicant. However the learned trial Court have not considered
whether the Respondent has completed his job to the entire satisfaction
of the Applicant and why the Respondent remain silent about 1 year
and provided an alleged letter dated October 7, 1996 which was never
received by the Applicant.

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(d) That the Respondent has failed to file any proof which shows that the
Respondent has completed the entire work to the satisfaction of the
Applicant. The trial Court did not consider the same and passed the
Judgment against the Applicant and also dismissed the Application
under Section 12(2) read with Order IX Rule 13 and 151 CPC filed by
the Applicant and passed the Impugned Order.

(e) That the Respondent failed to file any proof which shows that the letter
dated October 7, 1996 was received by the Applicant and the learned
trail Court has also not considered the same and passed the Impugned
Order against the Appellant.

(f) That the learned trial Court in the Impugned Order held at page 3 and 4
as under:-
After having heard the parties counsels I have carefully gone
through the entire record of main suit. From the perusal of the
record it is transpires that defendant was debarred from filing
of WS vide order dated 31-01-2002 and the counsel for the
Defendant filed an Application U/S 151 CPC dated 17-09-2002
but subsequently the R &P of the suit bearing old No.
1304/1998, new No. 213 of 2003 and court motion notice was
issued against the Defendant and counsel for the Defendant put-
up his signature on court motion notice on suit diary on 05-05-
2003, his signature is also appearing on vakalatnama. Record
further reveals that the said Application U/S 151 CPC by
consent was allowed vide order dated 20-09-2003 and
Defendant was directed to file WS within one week but the
conduct of the Defendant shows that inspite of several
opportunities he failed to file WS and he was again debarred on
21-10-2003.

That the finding in respect of the aforesaid reproduced paragraph clearly

shows that the learned trail Court has not gone through the entire record
properly and erred in passing the Impugned Order. From the perusal of the
to the record it appears that the Applicant has filed its written statement on
October 21, 2003 which is on the record and the trial Court has not taken
the same on record and passed an exparte order. The trial court did not take
on record the written statement and passed the Judgment and Decree
without any consideration of the facts on record.

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 Copy of written statement filed by the Defendant is attached as Annexure “R-11”

(f) That the learned trail Court did not consider that the suit filed by the
Applicant is already pending in respect of the same transaction and the
Respondent has filed a Civil Revision No. 56 of 2008 which is still
pending before the Hon’ble High Court of Sindh at Karachi. In the
Applicant’s Suit the Hon’ble Court has already framed the following
issues which are also triable in this suit.

(i) Whether the suit has not been filed by an authorized person?

(ii) Whether the Defendant abandoned the work incomplete causing

delay in completion of work?

(iii) Whether the Defendant is responsible for the debit by M/s.

LASMO Oil Pakistan Limited?

(iv) Whether the Defendant is liable to pay the amount claimed in

the suit?

(v) What should the decree be?

(g) That the learned trial Court did not examine any witness on behalf of
the Plaintiff nor the Plaintiff has provided the evidence in respect of
payments of approval of the invoice. The Judgment and Decree passed
by the learned trial Court is without any basis and liable to be set aside.

(h) That it is well settled principal of law that no one should be condemned
unheard and the superior Courts encourage the Judgments on merits.
Exparte decree passed by the trial Court is without evidence which has
no force in the eye of law. Learned trail Court has committed an error
by dismissing the Application under Section 12(2) read with Order IX
Rule 13 and 151 CPC and failed to consider that the dispute between
the parties is of serious nature which requires evidence of the parties,
therefore, the Judgment and Decree passed by the trail Court is illegal
against the law and the same is liable to be set-aside.

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(i) That the Impugned Order was passed on April 13, 2009 copy of the
Order was prepared and supplied on ____________ and the Revision is
within time.

(j) That the impugned order has been passed without appreciating the facts
on record and the law applicable thereto.

(k) That the Impugned Order is based non-reading and misreading of the
pleadings of the Applicant in material respects.

(l) That the Impugned Order is not according to the law and not warranted
by the facts on record.

(m) That the Impugned Order is contrary to the legal position in view of the
pleadings and facts on record and legal position arising there from.

(n) The Impugned Order is even otherwise against the facts of the case and
the law applicable thereto.

(o) The Applicant seeks the leave of this Hon’ble Court to urge further
grounds at the time of hearing of this Appeal.

PRAYER

In view of the above it is most respectfully prayed on behalf of the Applicant

that this Hon’ble Court may graciously be pleased to call the record and
proceedings, set-aside the Impugned Order dated April 13, 2009 passed by the
1st Senior Civil Judge at Karachi (East) and allow the Application under
Section 12(2) read with Order IX Rule 13 and 151 CPC in Suit No. 213 of
2003 and Execution No. 11 of 2006.

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The Hon’ble Court may be pleased to suspend the operation of the execution
proceedings till disposal of this Appeal.

Any other relief to the Applicant which this Hon’ble Court deems fit in the
circumstances of the case may also be granted.

Karachi
Dated:-
___________________________________
FOR AND ON BEHALF OF APPLICANT

__________________________________
ADVOCATE FOR THE APPLICANT

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 For immediate use
On behalf of the Applicant

IN THE COURT OF DISTRICT AND SESSION JUDGE (EAST)

AT KARACHI

CIVIL REVISION NO. ___OF 2009

Echo West International (Pvt.) Limited ............ Applicant

Versus

Quaid – e – Jauhar ……………………..………….. Respondent

AFFIDAVIT

I, __________________ s/o ________________________, Muslim, adult,

resident of Karachi, do hereby state on oath as under:

1. That I am authorized representative of the Applicant am well

conversant with the facts of the case.

2. That the accompanying Memorandum of Revision has been drafted

under my instructions and the contents of the same may kindly be read
as an integral part of this affidavit for the sake of the convenience and
brevity.

3. That the contents of the accompanying Memorandum of Revision are

true and correct to the best of my knowledge and belief.

3. That whatever stated above is true and correct to the best of my

knowledge and belief.

_______________
DEPONENT

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The Deponent is identified by me to the Commissioner for taking Affidavit.

_______________
ADVOCATE

Solemnly affirmed before me at Karachi on this _____ day of May 2009 by the
Deponent who is identified by Mr. Aijaz Shirazi Advocate, who is known to
me personally.

______________________________
Commissioner for taking Affidavits

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