2002 PLP 1821 (MLD)

(4) Whether the respondents are entitled to .special costs? OPR. (5) Whether the petition is defective? OPR. (6) Relief.

4. In support application defendant No.5, Hakim Ali appeared as A.W.1. Besides him no oral or documentary evidence was produced by the applicants (defendants Nos.4 to 6).

5. The plaintiffs produced two witnesses and 13 documents. R.W.1, Wali Muhammad process‑server deposed that notice EXh.R.l was entrusted to him for service of defendants Nos.4 to 6 on which his report is Exh.R.2 whereby service on Sardar Ali defendant No.4, was personally effected and service on Hakim All defendant No.5, was effected through his said brother Sardar Ali. R.W.2, Muhammad Siddique one of .the plaintiffs deposed that defendants Nos.4. to 6 had been contesting the suit for about 3‑1/2 years, had submitted written statement, power of attorney, in favour of .their Advocate Rasheed Anwar had filed an application for contempt and that the plaintiffs had moved an application to the Court for summoning the said Rasheed Anwar, Advocate as a witness but that application was dismissed and Rasheed Anwar, Advocate on their request did not come to the Court.

6. In the impugned judgment trial Court has mentioned that the original file of the case was annexed with the application, therefore, instead of adverting to the attested copies it had seen the relevant record from the original file which discloses that defendants Nos.4 to 6 (applicants) had put in appearance through counsel, submitted written statement, power of attorney in favour of their Advocate, on 18‑7‑1984 Sardar Ali defendant No.4 was present in person, stay application was contested by the said defendants whereafter it was decided, a contempt petition was also filed by the ‑said defendants in which issues were framed and it was fixed for evidence whereafter on 23‑9‑1987 the said defendants absented due to which they were proceeded against ex parte. It was observed by the Court that if the plea of the defendants was true they should have asked the Court for comparison of the thumb impressions/signatures appearing on the written statement, reply to the stay application, contempt application and power of attorney but they never expressed such desire. It was also observed by the Court that decree sought to be set aside was passed in the year 1987 while the application under Order 9, rule 13, C.P.C. was moved in 1994 it was, therefore, time‑barred. Resultantly, Issues Nos.1 to 3 were decided C against the applicants (defendants Nos.4 to 6) and their petition was dismissed on 22‑4‑1999.

7. Appeal against that order was dismissed by learned Additional District Judge, Sahiwal on 6‑2‑2002.

8. Now defendants Nos.5 and 6 and legal representatives of defendant No.4, have come up in revision.

9. Concurrent findings of trial Court and the lower Appellate Court are assailed by Malik Muhammad Latif Khokhar, Advocate on behalf of defendants Nos.4 to 6 (present petitioners) who urged that:‑‑ (i) Order and judgment of both the lower Courts are based on misinterpretation and misapplication of law and they also suffer from misreading and non‑reading of evidence. (ii) The petitioners were never served, they never appeared before the trial Court nor any counsel was engaged by them and all the proceedings conducted in the case were manoeuvred by the plaintiffs and that (iii) The two Courts below did not send to the expert, the alleged signatures and thumb‑impressions of the petitioners (defendants Nos.4 to 6) appearing on power of attorney, written statement, reply to stay application and contempt application etc., for comparison with their genuine signatures to verify the true facts.

10. Arguments of the petitioners' counsel have been heard. Copies of relevant record annexed with the revision petition have also been perused.

11. Adverting to the first contention of the learned counsel for the petitioners it may be observed that during the arguments, learned counsel had failed to draw my attention as to which law was misinterpreted or misapplied by the lower Courts in their orders or which piece of evidence was overlooked or was misread.

12. A perusal of the impugned order and judgment reveals that they are entirely reasonable and evidence was properly examined, assessed and findings are based on evidence.

13. The petitioners had come up after more than six years alleging that decree passed on 24‑9‑1987 was liable to be set aside on the grounds alleged by them. It was for them to prove that there were sufficient grounds to set aside the decree and their petition was within time. To prove their version they did not bother to produce any independent evidence but contended themselves by producing one of the applicants in the witness‑box who was witness of his own cause and he satisfied himself by stating before the Court that none of the applicants was ever served and all the proceedings appearing on record of judicial file were against facts as the power of attorney purporting to be given by them in favour of Rasheed Anwar, Advocate, written statement, reply to the stay application, contempt, application all purporting to be signed and submitted by them and order sheet of the Court showing presence of one of the applicants (defendant No.4) were fake.

14. The applicants want that the solitary statement of one of the applicants which was not supported or corroborated by any independent evidence should have been believed of a gospel truth as against the oral and documentary evidence produced by 'the other side and in the light of the unsupported and uncorroborated solitary statement of one of the applicants, the judicial record and proceedings to which presumption of correctness is attached should have been disbelieved.

15. It is also agitated on their behalf that to verify the true facts the Court should have sent the power of attorney; written statement, stay application and allied documents purporting to have been executed and submitted by them for comparison with their genuine signatures. I am unable to agree with the learned counsel for the applicants as it was neither the duty of the Court nor that for the opposite‑party to have incurred the expenses regarding fee of expert to procure evidence for the applicants. It was the applicants, who had alleged that all the afore mentioned documents were not signed and submitted by them, therefore, it was their duty to have requested the Court to send the said documents to the expert at their expense as it was a civil case and not a criminal case in which such expenses are borne by the State.

16. Even if it be assumed that notice in the case was not served personally on defendants Nos.4 to 6, who were in fact contesting defendants, it is not of much significance because from the original record of the case it was established that the said defendants (applicants) had been contesting the suit all along for a period of more than three years and it was on 23‑9‑19.87 that they were proceeded against ex parte.

17. Section 115, C.P.C. is directed against irregular exercise, non‑exercise or illegal assumption of jurisdiction and not against the conclusions of fact or law not involving the question of jurisdiction. The impugned orders do not suffer from any jurisdictional error. Contentions raised before me by the learned counsel for the petitioners are devoid of any force; revision petition is accordingly dismissed at the limine stage. H.B.T./S‑451/L Revision petition dismissed.