2025 PLP 282 (MLD)

S M Attique Shah, J.

The moment, the case was taken up for hearing, the learned counsel for the respondent-university raised an objection over the very maintainability of the instant appeal mainly on the score that the same has not been filed through a competent person under the law as the appellant is abroad and without procuring his power of attorney through the embassy of Pakistan, the instant appeal had been filed, which is in the given circumstances is not maintainable in the eye of law.

2. Such objection was rebutted by the learned counsel for the appellant while contending that no doubt the appellant is abroad, however, before proceeding abroad, he had given power of attorney / wakalatnama to his counsel namely Mr. Azhar Ali, Advocate, who happens to be his real brother, whereby, he has been authorized to file appeal, revision, restoration etc on his behalf, therefore, the present appeal is filed competently.

3. Be that as it may, the original record depicts that the appellant has given `wakalatnama' to his counsel / brother, who contested the suit on behalf of the appellant before the learned trial court on the strength of said `wakalatnama', which shows that the learned counsel has been duly authorized by appellant to contest the suit on his behalf before the learned trial court and also to file appeal, revision and; other ancillary matters, arising out of the said suit. Therefore, in the attending circumstances of the case, this court is of the view that the instant appeal has competently been filed through his counsel / brother by the appellant before this court. Thus, the objection, so raised by the learned counsel for respondent-university over the maintainability of instant appeal is overruled being misconceived.

4. Now coming to the merits of the case. Record shows that the respondent-university instituted a suit for recovery of RS.14,90,398/- plus US $1,13,117.53 together with mark-up at bank's rate till final realization of suit against the appellant before the learned Civil Judge-VI, Peshawar. Initially, the learned counsel / brother of the appellant named above marked his attendance in the case on his behalf on 31.07.2007 and then, he disappeared and; accordingly, appellant was placed ex-parte on 03.11.2007. Later on, his learned counsel / brother filed an application for setting aside the ex-parte proceedings, which was accepted by the learned trial court and ex-parte proceedings were set aside and thereafter, he filed written statement on behalf of appellant and contested the suit till 12.10.2010, however, again disappeared from the court proceedings and the appellant was accordingly, once again placed ex-parte, resulting in the ex-parte judgment and decree passed against him on 29.09.2011. The appellant through his counsel/brother again filed an application for setting aside the ibid ex-parte judgment and decree on 20.10.2011, which was dismissed by the learned trial court vide impugned order dated 16.12.2013. Hence, the instant appeal.

5. Record shows that the appellant while serving in the respondent-university as Assistant Professor in the department of Civil Engineering was nominated by the respondent-university for higher studies i.e. Ph.D in the field of Fluid Mechanics and he was accordingly, granted study leave with pay w.e.f. 08.08.1997 to 16.02.2004. In this respect, a proper bond was executed between the appellant and the respondent-university prior to the departure of the appellant for his higher education, wherein, the appellant agreed that in case of breach of any of the terms and conditions of the bond, he will pay on demand a sum of Rs.10,00,000/- to the respondent-university as damages. It is apparent from the record that the appellant did not abide by the terms and conditions of the said bond, which compelled the respondent-university to file the instant recovery suit. No doubt, it is a case of moral decadence as the respondent-university has spent a huge amount on the appellant for his Ph.D with a sole object that he upon completion of his higher studies will impart education, share his experience which would benefit the students of the country but instead he prioritized his greed of earning more money over the future of the students. It is settled procedure that when an employee does not return to Pakistan and report for duty after the expiry of ex-Pakistan leave period or he failed to serve his university as per his commitment / bond, then he can be proceeded against for willful violation of the bond. It is also settled that no leniency should be shown to those persons who proceed for studies abroad on scholarship and violate their agreements / bonds. 2002 SCMR 692 Chairman, Wapda and others v. Dr. Tabassum Zeb, 2011 SCMR 1102 Messrs Pakistan International Airlines Corporation v. Board of Trustees, Employees, Employees' Old-Age Benefits and others and; 2016 MLD 647 Aisha Bibi v. Zafar Iqbal. Indeed, it is worth mentioning that the appellant availed the opportunity of higher education / Ph.D in the field of Fluid Mechanics from George Washington University USA, one of the most prestigious University of the world in the year 1997 on the scholarship / hard money of taxpayers of the nation and; after passing of 24 long years, he could not make good the said amount to the respondent-university in terms of his commitment / bond, which certainly speaks volumes.

6. During the course of brief submissions, upon court's query, learned counsel representing the respondent-university apprised the court that the appellant after completion of his Ph.D in the field of Fluid Mechanics did not serve the university as per his commitment; rather, permanently settled in Canada on the strength of the said Ph.D Degree. Certainly, such violation of the agreement / bond by a member of the most educated and; highly respectable segment of the society is very regrettable and beyond comprehension in the attending circumstances of the case.

7. Let it be that as it may, the application of the appellant filed for setting aside the ex-parte decree passed against him does not disclose any cogent, convincing and; justified reasons in terms of Order IX Rule 13, C.P.C. Main grounds of the appellant in the application for setting aside the ibid ex-parte judgment and decree are that he has not been given opportunity to pursue his case and; that nobody should be condemned unheard. Record shows that the appellant is abroad and instead, his learned counsel / brother is pursing the recovery suit on his behalf. Earlier the appellant was placed ex-parte, however, the said order was set aside on his request by the learned trial court. Subsequently, once again he absented from the proceedings and; resultantly, he was proceeded ex-parte and; finally after recording of evidence of the respondent-university, impugned ex-parte decree was passed. Perusal of the contents of the application qua setting aside the ex-pare decree would show that the same are flimsy, bald and; unsubstantiated which in the given circumstances has rightly been struck down by the learned court below through the impugned order.

8. So far as the contention of the appellant that the learned trial court should have allowed the application of the appellant filed for setting aside the ex-parte decree, as the same was well within the period of limitation holds little water in the attending circumstances of the case as the grounds agitated by the appellant in his application are neither plausible nor reasonable notwithstanding the fact that the same was filed within the period of limitation. Indeed, it was the duty of the appellant to have satisfied the court qua his non-appearance and diligently pursuing his case by forwarding reasonable and; justifiable grounds for his absence, however, he failed to do so. Therefore, in the attending circumstances of the case, the learned court below has rightly dismissed the application of the appellant for setting aside the ibid ex parte decree passed against him through the impugned findings. 2008 SCMR 1417 Javaid Siddiq v. Muhammad Javaid Umar Khan.

9. In view of above legal and factual position of the case, it is concluded that impugned findings of learned court below are the result of proper appreciation of material available on record of the case warranting no interference of this court through the present appeal.

10. Accordingly, this appeal being meritless stands dismissed along with CM. SA/155/P. Appeal dismissed.