1995 PLP 991 (SCMR)

FAZAL ILAHI KHAN, J.‑‑‑This is petition for leave to appeal against the judgment dated 13‑12‑1992 passed by a Single Judge of the Lahore High Court, Lahore in Writ Petition No. 8825 of 1992. The suit for specific performance of an alleged sale agreement instituted by respondents Nos. 3 to 5, regarding the suit land, instituted in the Court of Senior Civil Judge, Kasur against Zahoor Khan the original owner of the suit land which was dismissed on 10‑5‑1975. Their application for restoration was also dismissed on 20‑4‑1978 for want of proof and similarly the second application eras also dismissed on 5‑5‑1979 it being not maintainable in appeal, however, the case was remanded to the trial Court and subsequently the suit was restored on payment of Rs.100 as cost on 18‑12‑1982. Thereafter, a declaratory suit was filed by Zahoor Khan on 2‑6‑1978 against the petitioners whereby the validity of the sale and mortgage transaction in favour of the petitioners were challenged. Yet in another suit the other transaction of exchange in favour of the petitioners was also challenged. As the suit was pending in different Courts, therefore, on the application of the plaintiffs that all the three suits were ordered to be heard by the same Court vide order dated 19‑4‑1984 of the learned District Judge. In a suit filed by Munir Khan etc. the petitioners moved an application under Order 1, Rule 10, C.P.C. for their impleadment as a party to the suit but before the disposal of said application the trial Judge directed the plaintiffs to produce their evidence and in the meantime on 19‑5‑1984 ex parte proceedings were taken against he defendant Zahoor Khan. After recording ex parte evidence of Munir Khan etc. the plaintiffs/respondents suit was decreed ex parte by the learned Senior Civil Judge by his judgment and decree dated 20‑5‑1984 and the petitioners' application for the impleadment was accordingly dismissed. The aforesaid judgment was, assailed by the petitioners in appeal by the petitioners. The learned Additional District Judge set aside the ex parte judgment and decree and remanded the case to the trial Court for decision afresh after impleading the petitioners as defendants in the suit vide order dated 15‑7‑1987. Amended plaint, impleading the petitioners as defendants, was filed in Court on 3‑11‑1987. Because of petitioners/defendants absence ex parte proceedings were ordered against the petitioners and again the suit was decreed ex parte in favour of the plaintiffs/respondents Nos. 3 to

5. When petitioners came to know of the ex parte decree they applied for setting aside the same decree. The learned trial Judge framed 2 issues in the matter on 27‑3‑1991. The petitioners subsequently moved an4application for amendment of their application for setting aside the ex parte decree for addition of a new ground No. 7‑A to the effect that the remand proceedings were contrary to law as 3‑11‑1987 was not a date of hearing. The trial Judge dismissed the application for amendment vide his order dated 22‑1‑1992 which order was maintained by the learned Additional District Judge on dismissal of the petitioners' Revision Petition on 27‑5‑1992. Both these orders were assailed in Writ Petition No. 8825 of 1992 before the Lahore High Court which was dismissed on 13‑12‑1992, leave to appeal is prayed for against the judgment of the learned High Court as stated above. We have heard the learned counsel for the parties and perused the record. Admittedly the original application filed by the petitioners for setting aside the ex parte decree is pending decision before the trial Court and has not been disposed of. The learned Judge in Chamber while dismissing the petition has observed as follows:‑ "The impugned order passed by the learned Civil Judge is of interlocutory character vires whereof can be challenged by the petitioner as a result of final decision of the case. The amendment sought prima facie, does not fall within the purview of Order IX, Rule 13, C.P.C. Be that as it may, no error of jurisdiction has been pointed out so as to justify interference in writ jurisdiction by this Court." Learned counsel for the petitioners was unable to point out any infirmity in the judgment of the learned High Court. Any order passed on the application for setting aside the ex parte decree, would be the final order and if aggrieved by such order the petitioners will have a right to challenge it on any ground available under the law. The discretionary order of the learned trial Court disallowing the amendment in the application for setting aside the ex parte decree which was not interfered with in the revisional jurisdiction, was rightly held unquestionable in Constitutional jurisdiction. We, therefore, find no infirmity in the judgment of the learned High Court and dismiss this petition. AA./A‑1186/S ??????????????????????????????????????????????????????????????????????????????????? Leave refused.