2011 PLP 1745 (MLD)

AMIN-UD-DIN KHAN, J.

With the concurrence of the learned counsel for the parties, this case is being treated as Pacca case.

2. Through this constitutional petition the petitioner has challenged the order passed by the learned Senior Civil Judge, Bahawalnagar whereby the petitioner's application for setting aside the ex parte decree was dismissed and vide revisional order dated 2-4-2010 the learned Additional District Judge also dismissed the revisions petition filed by the petitioner.

3. Brief facts of the case are that respondent No.1 filed the suit against the petitioner. On 18-10-1999 ex parte proceedings were ordered against the defendant as twice the representatives of the defendant appeared in the court and on 18-10-1999 no one appeared, therefore, the learned trial court proceeded against it ex parte. After that on 5-10-2000 on non-submission of the written statement the defence was closed and on 8-5-2001 the suit was ex parte decreed. The petitioner moved an application for setting aside the ex parte decree under Order IX Rule 13, C.P.C. and under section 12(2), C.P.C. on 14-1-2002. This application was dismissed on 9-12-2009. Then the revision petition filed by the petitioner was also dismissed on 2-4-2010.

4. Learned counsel for the petitioner contends that one Nadeem Shahzad appeared as representative of the petitioner and on another occasion Feroze Ahmed Bhatti, appeared as representative. The contention of the learned counsel for the petitioner is that both these persons were local employees of the company, therefore they were not entitled to appear in the court on behalf of the company. Further contends that under Order XXIX, C.P.C. the suit has not been validly filed against the company. Further contends that the Project Director was appointed from Bahawalnagar and company office is at Karachi only and there was no sub-office of the company at Bahawalnagar. Further contends that even the plaintiff company was not able to file the suit through Ahmed Bux that the decree has been passed in violation of Order XX, Rule 6, C.P.C.; that the office of the company is not at Bahawalnagar, therefore, under section 20(2), C.P.C. suit was not maintainable at Bahawalnagar.

5. Conversely, learned counsel for the respondents states that all the objections which have been taken today have not been taken before the learned trial court or revisional court, therefore, the petitioner is not entitled to raise any such objection before this court. Further contends that petitioner has not challenged the order dated 5-10-2000, whereby his defence was closed; that application for setting aside the decree was decided after framing of issues and recording of full evidence. He has supported the judgment passed by both the courts below.

6. I have heard the learned counsel for the parties and perused the record available on the file.

7. I am afraid that the technical objections taken by the learned counsel for the petitioner with regard to Order XXIX, C.P.C. and section 20, C.P.C. are not available to the petitioner at this stage in the constitutional petition because I have noticed that the suit has been filed against the company through their project manager, who was dealing with the matters at Bahawalnagar, meaning thereby the sub-office in the shape of project manager was available at Bahawalnagar. I have further noticed that there is no case of the petitioner as the petitioner has not denied from the appearance in the court by its representative. Only explanation has been given that they were not duly authorized by the company. I have noticed that the application for setting aside the ex parte decree has been filed by the petitioner under Order IX Rule 13, C.P.C. read with section 12(2), C.P.C., I find that both these provisions cannot be pressed into service simultaneously. The petitioner can choose any one of them. These are self-contradictory also. The petitioner has not approached this court with clean hands as there is a decree in favour of Ahmed Bux dated 8-5-2001 and till today the petitioner is creating hurdle in his way and keeping him away from the fruit of decree. Learned A.A.-G. also opposed this petition on the ground that the official respondents have got the matter inquired through Executive Engineer, he reported that the suit filed by the respondents was absolutely correct as the petitioner company has taken away the earth. I have also noticed that the objections taken herein have not been taken before the lower courts. Further the petitioner has not come to this court with clean hands as his counsel also appeared before the lower courts and now the stand of the petitioner is that in the lower courts the persons appeared on behalf of the petitioner company were not authorized. In the light of what has been discussed above, I see no force in this writ petition, which is accordingly dismissed. H.B.T./C-8/L Petition dismissed.