1999 PLP 3239 (MLD)

(c) Civil Procedure Code (V of 1908)

S. 115

Revision petition

Competency

Where Courts below had passed orders strictly in accordance with law and no illegality or irregularity was committed while passing said order, revision petition against such order would not be competent. Sher Zaman, Dy. A. G. for Petitioner. Sh. Zia Ullah for Respondent. Date of hearing: 11th May, 1998. Instant revision petition is directed against the order, dated 15-11-1981 passed by the learned Additional District Judge, Lahore dismissing the appeal against the order dated 1-6-1980 whereby the learned Civil Judge, Lahore dismissed the application of defendants/petitioners for setting aside ex parte decree passed in favour of plaintiff/respondent. 2: Briefly stated the facts are that plaintiff/respondent filed a suit on 16-2-1976, for permanent injunction restraining the defendants/petitioners from recovering a sum of Rs. 77,437.02 from him (plaintiff/respondent). The defendants/petitioners were summoned for 5-4-1976 when one Anwar Ali appeared on behalf of defendants/petitioners. As he had to authority to appear in the Court so the Trial Court proceeded ex parte against the defendants/petitioners and adjourned the matter to 26-6-1976 for recording ex parte evidence. The defendants/petitioners moved an application for setting aside ex parte proceedings on 26-7-1976. The said application was dismissed on 7-2-1977 on account of non-prosecution. Ex parte evidence was recorded on 28-6-1977 and consequently an ex parte decree was passed on 30-6-1976. The defendants/petitioners moved an application for setting aside ex parte decree on 10-7-1977. The said application was dismissed on 1-6-1980. The, defendants/petitioners filed an appeal against the said order dated 1-h-1980 on 23-2-1981 which appeal was dismissed on 15-11-1981. Hence, the instant revision petition.

3. The contention of the learned counsel for the petitioners is that service upon defendants/petitioners had not been effected in accordance with law i.e. Order 27, Rule 4, C. P. C. as such no order under Order 9, Rule 6 could be passed against them, that the lower Court had no jurisdiction to entertain the suit as the jurisdiction of the Civil Court was barred under section 23 of War Risks Insurance Ordinance, that as the vires of said Ordinance were challenged so a notice to Attorney-General was necessary which had not been issued by the lower Court. He, thus, submitted that Trial Court did not exercise (he jurisdiction vested in it in accordance with law while passing ex parte decree dated 30-6-1977.

4. Conversely, the impugned order has been supported by the learned counsel for the plaintiff/respondent. It is contended by the learned counsel or the plaintiff/respondent that application moved for setting aside ex parte decree was dismissed on 1-6-1980 whereas its appeal was filed on 23-2-1981 which was patently barred by time, that provisions of Order 27, Rule 4, C. P. C. are not attracted in the instant case as no Government Pleader had been appointed to look after the lis instituted/pending against Government, that Trial Court was justified in passing ex parte order on 5-4-1976 as none had appeared on behalf of defendants/petitioners although they had been served and had deputed one Anwar Ali who appeared on their behalf in the Court having no authority for the said purpose, that application for setting aside ex parte proceedings was moved on 26-7-1976 which was dismissed on account of non-prosecution on 7-2-1977, that lower Court was not left with any alternative but to record the ex parse, evidence and then to pass an ex parte order which was, consequently, passed on 30-6-1977, that application for setting aside ex parte decree was filed on 10-7-1977 which was resisted by the plaintiff/respondent and after recording evidence the same was dismissed on 1-6-1980. An appeal against this order of dismissal dated 1-6-1980 was tiled on 23-2-1981 i.e. after a period of 8 months, that there is nothing on record to explain this delay of eight months and petitioner was bound to explain delay of each day as held in Federation of Pakistan v. Niaz Ahmad (1997 S C M R 959), that there was no sufficient cause for moving an application for setting aside an ex parte decree and lower Court was justified in dismissing the said application for setting aside ex parte decree on 1-6-1980, that both the Courts below have not committed any illegality or irregularity in passing impugned orders. He, thus, submitted that there is no force in this revision petition and the same be dismissed.

5. The main contention urged by the learned counsel for the petitioner is that lower Court has not adhered to the provisions of Order 27, rule 4, C. P. C. while passing the order of ex parte proceedings on 5-4-1976. His contention is that as defendant No. 1 represented the Federal Government so the Trial Court was bound to issue process as required under Order 27, Rule 4, C. P. C. I am afraid there is no force in this submission of the learned counsel for the petitioner. The provisions of Order 27, Rule 4, C. P. C. are attracted only if a Government pleader has been appointed. There is nothing on the record to show that any Government Pleader had been appointed in the said Court at the relevant date i.e. 16-2-1976, when process was issued for effecting service upon defendants/petitioners. Thus the contention urged is hereby repelled. The other contention raised is that Trial Court could not proceed under Order 9, Rule 6, CPC against the defendant/petitioner on 5-4-1976 as service had not been effected upon the defendants/petitioners. This contention is also devoid of any force as it was after due service upon defendants/petitioners that Anwar Ali had been deputed to appear in the Court. Had Anwar Ali not appeared in the Court on behalf of defendants/petitioners, could be presumed that service had not been effected on defendants/petitioners. Since Anwar Ali appeared in the Court on behalf of defendants /petitioners Nos. 1 and 2 and his appearance could not be accepted by the Court for want of any authorization on behalf of A defendants /petitioners, so the Court was justified in passing an ex parte order as required by Order 9, Rule 6, C. P. C. The other contention urged by learned counsel for the petitioners is that as vires of War Risk Insurance Ordinance had been challenged so a notice to Attorney-General was necessary in the instant case. There is also no force in this submission, as vires of the said Ordinance had not been challenged but only defendants/petitioners had been restrained from recovering the said amount being illegal etc.

6. It may also be pertinent to note that ex parte decree was passed against defendants/petitioners on 30-6-1977 for which application for setting aside the same was moved on 10-7-1977. The said application was dismissed finally on 1-6-1980. An appeal against the said order was also dismissed on 15-11-1981. While moving an application under Order 9, Rule 13, C. P. C. the party concerned has to satisfy the Court that summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called for hearing. In the instant case Anwar Ali appeared on behalf of defendants/petitioners Nos. 1 and 2 so it is proved that summons were duly served upon defendants/petitioners. The defendants/petitioners were required to prove that they were prevented by any sufficient cause which evidence has also not been brought on record. Thus, the Trial Court was justified in dismissing their application for setting aside ex parte decree vide order dated 1-6-1980 which order was confirmed by the Appellate Court vide its judgment dated 15-11-1981. Both the orders referred above have been passed strictly in accordance with law. No illegality or irregularity has been committed by the Courts below while passing the said orders. There is no force in this revision petition and the same is hereby dismissed. H.B.T./I 91 /L. Revision dismissed.