2011 PLP 208 (YLR)

ZIA-UR-RAHMAN KHAN, J.

With the help of the instant petition the petitioners are seeking the reversal of the judgment and decree dated 19-3-2010 passed by the learned appellate court whereby while dismissing the appeal of the petitioners the ex parte decree dated 9-9-2009 granted against them by the learned trial Court to the tune of Rs.5,93,000 has been upheld.

2. The entire facts of the case which gave rise to the institution of the instant petition are duly enumerated in the impugned judgments and decrees and need not be reiterated in the same manner. However, in order to comprehend the facts more effectively, it is enough to refer as to how and in what manner the suit of the respondent decree-holder was dealt with by the petitioners. The record shows that the suit was instituted on 16-4-2009 and the petitioners after being served, entered appearance on 14-5-2009 and they were directed to submit the written statement. The same was not submitted before or on the next date, with the result that the notice under Order VIII Rule 10, C.P.C. was given to them and the matter was deferred to 5-.6-2009. On the said date instead of filing their written statement they made an application for adjournment which did not find favour with the trial Court and while dismissing the same their defence was also struck off. This order was appealed against but in vain. Thereafter the suit was continuously adjourned for recording the evidence of the respondent and on 13-7-2009 the same was recorded vide order Sheet No.12, the perusal whereof shows that the learned trial Court provided proper opportunity to the petitioners to cross-examine the witnesses but that chance was not availed of. It was on 29-7-2009 when the petitioner despite service were not in attendance. Resultantly, they were proceeded against ex parte and the matter was deferred for recording remaining evidence of the plaintiff-respondent. On 30-7-2009, the remaining evidence of the respondent was recorded and the representative of the petitioners also appeared and made an application for setting aside the ex parte proceedings, which application was fixed for arguments on 2-9-2009. On the said date, neither the petitioners themselves nor their counsel appeared. Thus last chance was given to them in view of the directions of the High Court for deciding the matter within 6 months. The record further reveals that on 8-9-2009 once again none appeared on behalf of the petitioner with the result that their application for setting aside the ex parte proceedings was rejected and the matter was adjourned for ex parte arguments. On 9-9-2009, ex parte arguments of the respondent were heard and in the light of the averments of the plaint, verbal statements of the respondent and his witnesses and. the disinterestedness of the petitioners, the learned trial Court decreed the suit of the respondent as prayed for. This decree was challenged by way of appeal but the same too did not find favour with the appellate court and was dismissed. Thus the instant petition.

4. The learned counsel appearing on behalf of the petitioners candidly admitted at the Bar the said episode of the proceedings but urged that although the defence of the petitioners was struck off and on relevant dates they were found absent but despite that the learned trial Court in view of the back drop of the false assertions of the respondent/decree-holder could not have recorded an ex parte decree adding that both the courts below have thus erroneously refused to set aside the ex parte decree in the exercise of their jurisdiction vested in them. Reliance in this regard was placed upon a judgment of the apex court reported as Farzand Raza Naqvi and 5 others v. Muhammad Din through legal heirs and others (2004 SCMR 400).

5. Arguments heard and record perused.

6. As discussed above, this court is supposed to resolve the issue as to whether in the aforesaid background the trial Court in spite of the absence of the written statement, delinquent attitude of the petitioners, their disinterestedness into the proceedings of the case was still debarred from the grant of ex parte decree in favour of the respondent decree holder. This plea of the learned counsel for the petitioners if viewed from all relevant angles, it becomes crystal clear that the courts below while keeping into consideration the throughout conduct of the petitioners have rightly refused to exercise their jurisdiction in favour of the petitioners. It is vividly clear from the record and referred to above that from the day one the petitioners were not interested into offering any reasonable opposition to the claim of the respondent decree holder because they did not submit their written statement within the prescribed period and when their defence was struck off, the said order was assailed before the appellate court but after the dismissal of their appeal, they did not seek their remedy any further and in this way the matter rested there. It is also clear from the record that throughout the proceedings they considered the same worthless and did not take any serious interest into the contest of the suit of the respondent. On many dates they and their counsel were found absent without any lawful excuse and so much-so when the trial Court, after recording the evidence of the respondent, made available to them the opportunity to cross-examine the respondent-plaintiff and his witnesses, they did not take any advantage from the said opportunity. In this way they themselves allowed the depositions of the respondent and his witnesses to go unchallenged without facing the test of cross-examination. This attitude of the petitioners is further indicative of their collusive delinquency on their part. The obvious reason of this disinterestedness and delinquency was that the petitioner knew that even if the suit of the respondent was decreed, the decretal amount was not going to be recovered from their personal pockets, rather the same would have to be paid from the national ex-chequer or the resources of the T.M.A. The case in hand is not the only case in which Government functionaries have facilitated the grant of a decree for a huge amount, rather in numerous cases on daily basis before different courts this is the routine practice of the said functionaries. Their such like contumacious negligence has so far caused immense damage to the national exchequer, but their immediate heads have been witnessing it as mute spectators without taking any punitive action against them, nonetheless, in this respect many judgments have been given by the apex Judiciary. Another aspect of the case is that when the decree was put to execution it were the petitioners who agreed to make payment of the decretal amount before the executing Court on 7-5-2010 meaning thereby that they themselves were convinced about the genuineness of the claim of the respondent/ decree-holder. These are the valid reasons which have been duly considered by the two courts below while recording the impugned findings. The same are the result of subjective examination of the entire material and being well founded are not vulnerable to any exception. They have rightly held that even on equity basis the petitioners are not entitled to any relief.

7. As far as reliance of the learned counsel for the petitioners upon the judgment of the apex court is concerned, the facts of he same case do not lend any support to the version of the petitioners because in the reported case a decree for ejectment was passed in favour of the decree-holder in respect of one house but during the course of execution he sought to claim possession of another house which was in occupation of one Din Muhammad. The said occupant filed an objection petition and the learned executing court after a detailed scrutiny of the claim of the parties held that the two houses were distinct properties. This order of the executing court was maintained by the learned Additional District Judge and also by the High Court. Thereafter the said decree-holder filed a civil suit claiming the ownership of the other house. The said suit was dismissed and appeal against the same was withdrawn in order to file a fresh suit. The subsequent suit was decreed ex parte against which the application of the judgment-debtor was rejected. He did not prefer any appeal rather he filed an objection petition which remained un successful. Soon thereafter he suffered an attack of paralysis and remained confined to bed. After his death, his legal heirs challenged the same decree before the High Court through writ petition which found favour with the High Court and the ex parte decree was set aside. The petition before the apex court of the decree holder was dismissed on the ground that prior to the grant of ex parte decree the suit property had already been adjudged to be the ownership of the deceased judgment-debtor and the subsequent decree was void ab initio and coram non judice.

8. But in the present case neither the petitioners were prevented from attending the court proceedings by any sufficient cause beyond their control, nor the instant issue was ever litigated by any court of law, nor the courts below were bereft of jurisdiction. In this view of the matter, since the petitioners have not been able to make out an arguable case in the exercise of revisional jurisdiction of this court within the ambit of section 115, C.P.C., thus the instant petition in the absence of any material irregularity or illegality and jurisdictional defect and being devoid of substance and merits, is hereby dismissed. It is further observed that let copy of this judgment be sent to the concerned Secretary and even the Provincial Minister so that such like events do not occur in future. S.A.K./287/P Petition dismissed.