1985 PLP 1101 (SCMR)

SHAFIUR RAHMAN, J.‑‑ The petitioner, a defendant in a suit for specific performance, seeks leave to appeal against the judgment of the Bahawalpur Bench of the Lahore High Court dated 13‑4‑1977 whereby a revision petition filed by the plaintiff decree‑holder was allowed and the ex parte decree passed against the petitioner, was restored. The plaintiff‑respondent filed a civil suit for specific performance against the petitioner which was decreed ex parte against her on 9‑1‑1975. She made an application on 7‑7‑1975 under Order IX, rule 13, C.P.C. for setting aside the ex parte decree. It appears that while contesting that application the. parties came to a compromise whereby the ex parte decree was set aside on payment of Rs.200 as costs to be paid in Court on or before 30‑6‑1976 failing which the application filed by the petitioner was to stand dismissed and the ex parte proceedings and the decree to remain operative against her. The petitioner failed to make the payment and ultimately by an order, dated 31‑1‑1976 the trial Court dismissed the application. An appeal was filed before the District Judge and the grounds taken were two‑fold. The first was that the civil Court was under a duty to examine the justification for passing an ex parte decree notwithstanding any compromise entered into between the parties for its setting aside The second ground was that even after such a compromise order as was passed the trial Court had the jurisdiction to extend the time. The learned District Judge allowed this appeal and gave an opportunity to the petitioner to deposit the amount in the trial Court before 10‑9‑1976 leaving an option to the plaintiff in case of her failure to recover the amount by execution through the Court. On second appeal the learned Judge in the High Court came to the conclusion that it was a compromise order both as regards the setting aside of the ex parte decree and also with regard to the amount and the time by which the amount was to be paid. Following the decision of this Court in Syed Ahmad Shah and 2 others v. Muhammad Yar and 6 others 1974 S C M R 191 the revision petition was accepted and the ex parts decree was restored. The learned counsel for the petitioner has contended that the trial Court had the jurisdiction to extend the time, that the cause was not lost for the petitioner by non‑payment of the amount and in any case the order passed by the first appellate Court was amply justified as the application had not been decided on merits. The learned counsel has relied on the decisions in Afajuddin Molls, and others v. Abdur Rahman Sk. and another P L D 1959 Dacca 454 and Asraf Ali alias Asrafuddin Mondal v. Bavla Hasda and others P L D 1967 Dacca 557 in support of his contentions. The learned counsel for the petitioner has not placed on record the terms in which the concession of the parties was recorded and the conditional order setting aside the ex parte decree was passed. We have, however, an opinion of the District Judge with regard to it. He mentioned it as follows:‑ "The perusal of the order passed by the learned Civil Judge would show that it was passed on the statement of the parties' counsel dated 2‑1‑1976. It was stated in that joint statement that in case the cost is not paid within time the application would be treated as dismissed. It was not the case that the application would stand dismissed. It cannot be said therefore that the trial Court had become functus officio after 2‑1‑1976." The view formed by the High Court is also that the compromise between the parties was not only with regard to the setting aside of the ex parts decree but also with regard to the amount and the date by which it had to be paid in Court. We would not subscribe to the contention of the learned counsel for the petitioner in such broad terms that the compromise itself was illegal and notwithstanding such a compromise the Court was under a duty to examine on merits whether the ex parte decree could possibly be passed or not at all. On the facts determined by the learned District Judge as well as by the High Court, the law laid down by this Court in Syed Ahmad's case was attracted to the case of the petitioner. We find that no legal infirmity exists which may require further examination by this Court. Hence leave to appeal is refused. M.I. Leave refused.