1994 PLP 1665 (MLD)

The relevant facts leading to the filing of the present revision petition are that the petitioner filed a suit for specific performance. The same came up on the file of Ch. Muhammad Din Basra, Civil Judge, Lahore, who issued notice to the respondent for 15-2-1992 and then 22-2-1992 but he remained unserved, therefore, fresh notice was issued to him for 3-3-1992. This time the respondent was served. He appeared and the suit was adjourned to 16-3-1992 for written statement and written reply but, since no one appeared on the next date, therefore, the respondent was proceeded ex parte. He however, subsequently moved an application under Order IX, Rule 7 read with section 151, C.P.C. The same was supported by an affidavit of Agha Muhammad Yaqub, Advocate. The justification for non-appearance was that the learned counsel for the defendant noted the date as 16-4-1992 instead of 16-3-1992. The petitioner resisted this application on legal as well as factual plans. It was contended on the legal side that the petition has been moved by a person not authorized by the defendant, therefore, liable to be dismissed on this short ground. The trial Court after hearing the arguments proceeded to accept the application vide order, dated 8-1-1994. Hence present revision petition, which was admitted to regular hearing and notice was issued to the respondent, who has appeared through his learned counsel and contested the petition.

2. The learned counsel for the petitioner in support of the petition argued that the application for setting aside ex parte proceedings was moved by the Advocate, who had not filed his power of attorney and as such had no authority to file and present the application, therefore, the application was incompetent. The learned counsel in this behalf has referred to the judgment of the Hon'ble Supreme Court in the case of Nazar Muhammad v. Government of Pakistan and others 1975 SCMR 387.

3. On the other hand, the learned counsel for the respondent argued that the power of attorney was filed and law favours adjudication on merits.

4. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record and precedent case, which' not relevant to the present controversy rather it supports the respondent because in this case the learned counsel was afforded time to file power o< attorney. The learned counsel for the respondent failed to render any assistance but it has no bearing on the merits of the case. It is the duty of the Court to do justice between the parties. I am of the considered view that non-submission of power of attorney alongwith the plaint/application for setting aside ex parte evidence was not fatal. It was at the most defective presentation of the petition by a person not holding the power of attorney. This does not render the application void or nullity and it is a mere irregularity curable by submission of power of attorney at the subsequent stage. I am fortified in my view by the judgments in the cases of Toor Gul v. Mst. Mumtaz Begum PLD 1972 SC 9, Ghulam Qadir. and others v. Abdul Sattar and another PLD 1984 SC 12, Australasia Bank Ltd. (now Allied Bank Ltd.), Branch Office, Peshawar v. Abdul Aziz Jan and others PLD 1983 pesh. 64, Shafiq Metal Works and 5 others v. The Bank of Bahawalpur Ltd., Gujranwala PLD 1973 Note 33 at p.41, Muhammad Sarwar alias Feroze Ali V. Abdul Ghani and 7 others 1980 CLC 946 and Ali Muhammad and 2 others v. Gulfam and another PLD 1983 Kar.

99. This is not all. Moreover, all technical rules unless unsurmountable should yield to interest of substantial justice. The Courts should lean in favour of adjudication on merits rather than stifling a proceeding on technicalities. In this behalf, reference can be made to the judgments of the Hon'ble ,Supreme Court reported as Abdul Aziz and others v. Sheikh Abdur Rahim and others PLD 1984 SC 164, Manager, Jammu and Kashmir State Property in Pakistan and others v. Khuda Yar and another PLD 1975 SC 678 and Thal Engineering Industries Ltd. v. Bank of Bahawalpur Ltd. and another 1979 SCMR 32.

5. The upshot of this discussion is that there is no merit in the revision petition. The same is dismissed with no order as to costs. The parties are directed to appear in the Court of Ch. Muhammad Hanif, Civil Judge, Lahore, on 2-5-1994. The trial Court is directed to decide the suit expeditiously and in any case by 30-6-1994 even if it has to hold day to day proceedings. No order as to costs. M.BA./M-1597/L??????????????????????????????????????????????????????????????????????????????? Petition dismissed.