2007 PLP 2702 (YLR)

MUHAMMAD AKHTAR SHABBIR, J.-- Facts giving rise to the present writ. petition are to the effect that Abdul Qayyum plaintiff-respondent No.3 herein had filed a suit -for recovery of Rs.7,82,104 against Muhammad Azam petitioner, Muhammad Siddique and Iftikhar Ahmad respondents Nos.4 and 5 in the Court. of Senior Civil Judge, Narowal. The .suit was contested by the present petitioner, who filed-his written, statement.

2. From the factual .controversy appearing on the pleadings of the parties, the learned trial Court vide his. order dated 18-12-2003, framed the various issues and the case was fixed for evidence of the plaintiff on 21-1-2004. On 21-7-2004, none appeared on behalf of the defendants and they were proceeded against ex parte.. During the trial of the suit, the defendant had filed an application for setting aside the ex paste order dated 21-7-2004, alleging that he himself misunderstood the date as 27-7-2004, instead of 21-7-2004, thus-he could not appear on the said date and he was proceeded against ex paste. The application was contested by the plaintiff/ respondent No.3 Abdul Qayyum who filed his reply to the same and the case was fixed for arguments. On . 1-12-2004, none appeared on behalf. of the plaintiff/ defendant , and his application for .setting .aside the ex paste proceedings was dismissed for non prosecution. .Partial evidence of the plaintiff was recorded and thereafter, the -case was adjourned to 3-1-2005, for remaining evidence- of the plaintiff. On 17-1-2005, the plaintiff respondent No.3 had. moved an application for permission to produce. secondary evidence which was allowed on the same date and the case had been adjourned to 15-2-2005 for remaining evidence of the plaintiff.

3. On 17-2-2005, the petitioner filed another application for restoration of his application filed for setting aside .the ex parte proceedings and restoration. of his earlier application, which too was contested by the plaintiff/respondent No.3 Abdul Qayyum and the learned trial Court vide its order dated 21-4-2005 dismissed the same. Feeling aggrieved, the petitioner, preferred a revision petition which came up for hearing before Addl. District Judge, Narowal, who vide the impugned order dated 17-9-2005, dismissed the same.

4. Learned counsel for the petitioner contended that the petitioner should not have been non-suited on mere technicality of procedure. Further contended that the ' case should be decided on merits. He placed his reliance on the case of Mst. Salma Begum v. Mst. Sardaran Bibi (PLD 1995 SC 406).

5. While on the other hand, learned counsel for contesting respondents has vehemently opposed the arguments of the learned counsel for the petitioner contending that the conduct of the petitioner shows that he has been trying to linger on the matter and the impugned order has been passed in a legitimate manner and jurisdiction vested in the Court that the High Court should not interfere in exercise of writ jurisdiction in the revisional order of the court below. Further contended that ex parte proceedings could be set aside provided `sufficient' cause has been established by the petitioner for non- prosecution and time-barred application for restoration of the earlier application. He has .placed his reliance on the cases of Dumar Coal Company v. Akbar Khan (1987 SCMR 1821) and Shafiq-ur-Rehman v. Muhammad Ashraf and others (1990 C.L.C'1806).

6. I have heard the arguments of the learned counsel for the parties and perused the record.

7. The ex parte proceedings can be set aside by the trial Court if the litigant is successful in showing good cause for his absence. The learned trial Court as well as the revisional Court observed that the petitioner has not been able to establish good/sufficient reasons for his absence and to set aside the ex parte proceedings against him. The petitioner before the trial Court has not been able to establish his case justifying the non-appearance of himself as well as his counsel in the Court, He has taken the contradictory pleas in his application. So much so, there is no material on the record to establish his sickness during the trial of the suit. From perusal of the impugned orders it reveals .that the petitioner has been trying to linger on the matter. He has not seriously contested the suit and failed to perform the legal requirement of Order IX, Rule 7 C.P.C. for setting aside the ex parte order. It is the factual controversy on which both the Courts below have concurrently passed their findings and the High Court will not interfere in the concurrent findings of the Courts below. The learned counsel for the petitioner when confronted to make out a ease of writ jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, could not respond.

8. For the foregoing reasons, this writ petition being devoid of merits is dismissed. F.B./M-159/L????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.