1990 PLP 671 (SCMR)

Nemo for Respondents. Date of hearing: 23rd May, 1989. ABDUL KADIR SHAIKH, J.‑‑This is a petition .for leave to appeal against the judgment of a learned Judge of Balochistan 1ligh Court dated 4‑5‑1988 by which a revision application filed by Mir Muhammad Amin, first respondent herein, was allowed with the result that the ex part c decree passed by Oa7i Mashkey dated 15‑11‑1987 which was upheld by Majlis‑e‑Shoora, Khuzdar on appeal by the judgment dated 10‑2‑1988 was set aside, and the case was remanded to the trial Court with the direction to obtain "proper amended plaint from plaintiffs'‑and thereafter notice be also given to newly‑in pleaded heirs of deceased Mir Ali Muhammad, an opportunity be given to all the defendants to file amended statements" and then the suit be decided afresh on merits in accordance with the law. The facts of the case briefly stated are that petitioner filed a civil suit against respondents 1 and 2 and Mir Ali Muhammad, predecessor‑in‑interest of respondents 3 to 8, in the Court of Qazi Mashkey claiming declaration that they are owners in possession of the suit‑land and for issuance of a permanent injunction by way of consequential relief. During the course of the proceedings in the suit, when the case came up for hearing on 22‑10‑1987, a copy of the plaint was delivered to respondent 1 and attorney of respondents 3 to 8 who were present in Court for filing written statements on 31‑10‑1987. However, on the next date of hearing respondents 1 and 3 to 8 were absent and the learned Qari ordered ex parte proceedings, and thereafter decreed the suit ex parte in petitioner's favour on 15‑11‑1987. On 17‑11‑1987 one Abdul Wahid, a relation of first respondent submitted an application on his behalf, explaining that first respondent was unwell on 31‑10‑1987 and the hearing of the case may therefore be adjourned till he regains health. The application, was supported by a medical certificate as to the first respondent's illness. The application was dismissed by the learned Qazi on the ground that the suit had already been decreed ex parte two days earlier. In the circumstances, first respondent filed an appeal before the Majlis‑e‑Shoora. Khuzdar, against the ex parte order dated 31‑10‑1987 which was however dismissed on 10‑2‑1988. It was in these circumstances that first respondent filed a Revision Application in Balochistan High Court, which was allowed by the impugned judgment dated 4‑5‑1988, as stated earlier. Mr. M. Aslam Chishti, learned counsel appearing in support of the petition submits that the first respondent had been attending the proceeding earlier to 31‑10‑1987 regularly, and therefore the ex parte proceedings initiated against him due to his absence without notice were rightly ordered, and the conclusion of both the Courts below in this regard was not open to interference by the High Court in its revisional jurisdiction. Learned counsel further submitted that the High Court erred in setting aside the ex parte order and judgment of the Courts below when obviously no sufficient cause in this behalf was made out. After having gone through the record of the case we find no substance in these pleas. It was conceded before the High Court that amended plaint had not yet been filed and in the circumstances learned Judge in the High Court rightly observed that "unless proper amended plaint was filed in accordance with directions dated 23‑9‑1987 and heirs of deceased Mir Ali Muhammad were duly served with respect to the same, further progress in the case was not possible. Therefore apparently all subsequent proceedings drawn in the matter are defective". Learned Judge further observed that it was also brought on record that the first respondent was unwell on 31‑10‑1987 which prevented him from appearing before the trial Court on that date. According to the learned Judge "there is obviously a plausible cause, which has been expressly pleaded by petitioner for explaining his subsequent absence. Admittedly such information was conveyed to trial Court on 17‑11‑1987, besides medical certificate was also placed on record. Evidently in the event of illness intimation would always be through some one else. There is nothing strange or improper in this behalf. Therefore conclusions drawn by Majlis‑e‑Shoora, on the basis of application moved by Abdul Wahid do not appear to be sound or reasonable". We whole‑heartedly agree with these views. It is the admitted position that the proceedings in the suit were not complete on 31‑10‑1987 and further progress in the suit was yet to be made to make it ripe for ex parte order and the ex parte decree to be passed against the first respondent. In the circumstances that the first respondent's absence on 31‑10‑1987 was supported by medical evidence learned Judge in the High Court rightly held that a sufficient cause was made out‑ for setting aside the ex parte order and the consequential ex parte decree. No exception can therefore be taken against the impugned Judgment of the High Court. The petition is dismissed. M.A.K./A‑575/S Petition dismissed.