1979 PLP 522 (CLC)

O. IX, r. ?-Adjournment of hearing of suit ex parte--Setting aside ex parte proceedings-Presiding Officer of Court not available on dates of hearing

Defendant-petitioner might have left on coming to know of such Officer's absence and could not be blamed for not attending Court on such dates-Petitioner, hence, not guilty of gross negligence in not thus attending Court - Trial Court not holding petitioner having failed to show good grounds for non-appearance on dates fixed for hearing-Petitioner wishing to defend suit, application for setting aside ex parte proceedings not time-barred, and no grounds to hold petitioner guilty of gross negligence in appearing on dates fixed, ex parte proceedings, held, should have been set aside in circum stances-Ex parte proceedings set aside and case remanded for decision on merits after giving usual opportunity to parties. -[Remand of case Adjournment]. M. A. Zafar for Petitioner. Gul Muhammad Butt for Respondent. Date of hearing: 19th March, 1975. This Civil revision arises from the orders dated 8-5-74 passed by the learned Additional District Judge, Mianwali, and dated 22-1-74 passed by the learned Admn. Civil Judge, Mianwali. The learned Admn. Civil Judge refused to set aside exparte proceedings. The order was affirmed in appeal.

2. The facts are that the petitioner had been served for 3-1-73 but since the Presiding Officer was on leave the petitioner was again summoned for 24-4-73. He did not appear on that date in spite of being served but on that date also the Presiding Officer was not available and processes were issued to the petitioner for 12-6-73. On this date also the petitioner did not appear in spite of being served. The case was adjourned to 25-7-73 for ex parte evidence. The Presiding officer was not present on the said date therefore, the case was adjourned to 24-10-73 on which date the petitioner brought application for setting aside the ex parte proceedings. It was observed by the learned Admn. Civil Judge that the application was not within time and that since he had not been .appearing on previous dates in spite of being served he was negligent and thus was not entitled to request for the setting aside of the ex parte proceedings. This is wrong that the petition was time-barred. If on 25-10-73 the Presiding Officer had been present and no application for setting aside the ex pane proceedings had been made on the said date and had been made afterwards it could be said that was time-barred. Since the Presiding Officer was not. present the next date would be deemed to be that on which date the Presiding Officer was available.

3. This could not be a genuine ground for dismissing the application for setting aside ex parte proceedings, that for previous dates the petitioner had been served but had not attended. Since the Presiding Officer was not available on those dates, the petitioner cannot be blamed for not attending the Court. He might have come but learning that the Presiding Officer was no present might have left. He was not guilty of gross negligence in this respect. The learned Admn. Civil Judge did not hold that the petitioner had failed to show good grounds for the non-appearance on the date for which he was served and did not attend. When the petitioner wanted to defend the Suit and his application was not time-barred and there were no grounds to say that he was guilty of gross negligence in not appearing on the date fixed. ex parte proceedings should have been set aside.

4. As a result of the observations made above, I accept the revision and setting aside the orders of the Courts below set aside the ex parte proceedings and remand the case with the direction that it be decided on merits after allowing the petitioner to file written statement and after giving opportunity to the parties to produce evidence on the issues which may be framed on the pleadings of the parties. However, the parties are left to bear their own costs in this revision petition. Revision accepted.