1993 PLP 1555 (MLD)

This application has been moved by the defendants under Order 9, Rule 13, C.P.C. read with section 12(2), C.P.C. wherein it is prayed on behalf of the defendants that the judgment passed ex parte on 25‑4‑1991 and decree dated 6‑8‑1.990 be set aside on the grounds that the defendants had engaged a counsel, namely Mr. A.A. Ashri but he did not attend the Court. and, therefore, the suit was decreed ex parte. Another plea was taken that a fraud has been played in the suit and the said judgment was obtained through misrepresentation as admittedly the entire rent was paid at the time of handing over the possession of the premises and the present claim is not based on truth and the ex parte decree is secured illegally. I have heard the learned counsel on the merits. It may be observed that a perusal of record would show that in this case Mr. A.A. Ashri, Advocate for the defendants has filed his Vakalatnama in Court on 11‑11‑1989 and a second Vakalatnama on 1‑11‑1990. In spite of the above fact no written statement was filed and none had subsequently appeared for the defendants and in these circumstances the ex parte judgment was passed on 25‑4‑1990. Thereafter, an application being C.MA. No.2353 of 1990 was moved on behalf of the defendants on 4‑11‑1990 under Order 9, Rule 13, C.P.C. read with section 151, C.P.C. praying for setting aside of ex parte judgment. This application came up for hearing on 3‑3‑1991 on which date also none was present for the defendants and the said application was dismissed touching the merit of the plea taken by the defendants. In these circumstances, the second application under Order 9, Rule 13, C.P.C. would not lie in the first instance. However, Mirza Ghiasuddin, Advocate for the defendants has submitted that in his second application he has also invoked the provisions of section 12(2), C.P.C. and, therefore, there being question of fact involved it is incumbent upon the Court to hold enquiry in the matter by framing such issues and allowing the parties to lead evidence. Mr. Manwar Ghani, Advocate for the plaintiffs has vehemently opposed this application and has reiterated the abovementioned facts. I have considered the submission of the learned counsel. In the first instance it may be observed that indulgence under Order 9, Rule 13, C.P.C. is not warranted in this case as the said provision of the Civil Procedure Code contemplates only two circumstances in which such order can be passed, namely (i) where the defendant is not served, and (ii) where the defendant shows sufficient cause by which he was prevented from attending the Court or filing his written statement. In the present case admittedly the defendant was served, engaged a counsel who appeared for him and thereafter neither the learned counsel appeared nor the defendant appeared in person. It may be observed that it was more than rive months thereafter that the suit was decreed ex parte. It is not for the party in a suit to engage a counsel and then forget about the matter, but a party is also under an obligation to keep himself abreast on different stages in the matter. In the present case it is obvious negligence on the part of the party as well and in such circumstances the party is not entitled to any indulgence under Order 9, Rule 13, C.P.C. As regards the plea taken by the learned counsel for the defendants that since the provisions of section 12(2), C.P.C. are invoked, therefore, it is incumbent upon the Court to frame the issues and hold enquiry It may be observed that these provisions apply where a fraud is played or misrepresentation is made during proceedings of the suit in the Court and not anything done outside the Court. In the present case the defendant had enough opportunity to defend or controvert the claim of the plaintiff in case the same was based on incorrect facts. It may be observed that, in this case, in the first instance during the period of more than five months before the suit was decreed, the defendant did not come forward to take such plea but against on 4‑11‑1990 he moved an application under Order 9, Rule 13, C.P.C. (C.M.A. No.2353 of 1990) and no such plea was taken in that application or affidavit filed in support thereof. In these circumstances, I am not convinced that the defendant is entitled to any relief as prayed for by him. This application is accordingly dismissed.

2. In view of the order passed on merits on the application No.l this application is also dismissed. A.A./A‑1372/K Application dismissed.