1988 PLP (C (PLC(CS))

Sher Zaman Kundi for Respondent No.

3. Respondent No. 3 was proceeded against ex parte vide order dated 22-5 1988 on account of his failure to attend the Court despite his service and knowledge of the case, per his admission duly endorsed through application for adjournment. Application for setting aside the ex parte order was moved on 30-6 1988, alleging therein that he was informed of the ex parte order dated 22-5-1988 by his counsel two/three days before when he was engaged and instructed by him to file the written statement. His absence was not intentional. He submitted an application for adjournment on 30-3-1988 through one Mr. Bashir Ahmad Mirza, Section Officer (E) and was given assurance by him that he will inform him of the coming date. The next date of Peshi was not communicated to him and he could not attend the Court on 22-5-1988. He is a responsible Government servant, presently working as Superintending Engineer, C&W Department, Malakand Circle with his Headquarters at Saidu Sharif, Swat and he cannot be expected of wilful disobedience. The case is at its initial stage and valuable rights of the petitioner being at stake, he may be given the opportunity to contest the appeal. Application was vehemently resisted by the appellant on the ground that it suffers from laches. Petitioner was served for 30-3-1988 and did not care to turn up. The delay is not condonable. It is a case of gross-negligence. The petitioner was not vigilant in pursuing his case. He was himself liable to ascertain the exact date of hearing. The case is ripe for arguments. The parties addressed the Court at length pro and contra their allegations. According to the counsel for the petitioner, he was not aware of the next date of hearing, fixed by the Tribunal and when he came to know of the ex parte order, he hurriedly moved this Tribunal for setting aside the same. Valuable rights of the parties are involved and petitioner was not at fault. On the other hand learned counsel for the appellant stressed that the case was being heard by the Tribunal not at Peshawar but at Saidu Sharif where the petitioner was serving as Superintending Engineer. Mr. Bashir Ahmad Mirza nowhere figures in the appeal. Besides this he was not an authorised agent of the petitioner. There is 15 days period for setting aside the ex parte order and the present application is badly barred by time. I have gone through the record of the case with their assistance. Preliminary arguments were heard on 21-2-1988 and notices were issued to the respondents -to file the written statement at Camp Court Saidu Sharif, Swat on 30-3-1988. Petitioner was cited as respondent No. 3 in the appeal. He did not attend the Court alongwith respondent No. 4 on this date. He submitted an application for adjournment on the ground that he is proceeding on leave from 25-3-1988 to 31-3-1988 and will not be able to attend the Court on 30-3-1988. Next date for peshi was fixed on 22-5-1988 for filing of written statement by the respondents. None appeared on behalf of the petitioner on 22-5-1988 and 19 6-1988 while the next date of Peshi was fixed as 10-7-1988. In the meanwhile the present application was moved on 30-6-1988. According to sub-rule (3), rule 9 in such like eventuality 15 days period was prescribed for moving the Court for setting aside the ex parte order passed against a respondent in a case. In the present case petitioner was well aware of the proceedings of the case, as is apparent from his application dated 30-3-1988. He was so negligent that he did not attend the Court on that date as well as on the subsequent dates which were fixed at Saidu Sharifi, Swat till the time when the case was fixed for filing of counter-affidavit on 10-7-1988 at Camp Court Saidu Sharif. There was no authority letter in favour of any person including Mr. Bashir Ahmad Mirza, on behalf of the respondent and there was no counsel engaged by him to represent him in the case. Although C.P.C. does not apply m stricto-senso in the proceedings before a Tribunal, yet the essence and the spirit that the proceedings cannot be allowed to linger on for an indefinite period on account of the conduct of an individual, are to be followed. The petitioner, according to his own application was away on leave from 25-3-1988 to 31-3-1988. He was duty bound to pursue the case after his arrival to his station of posting or by making query from the office of the Tribunal well within time. No good ground was given by him for obtaining the requisite relief. The application is not only barred by time but also without any cogent reason; hence rejected. S.S.Q./100/Sr. N Application rejected.