2015 PLP 957 (YLR)

ABDUL LATIF KHAN, J.

Through the instant revision petition, the petitioners have called in question the judgment dated 11-2-2010 passed by the learned Additional District Judge, Tank vide which their appeal against the order dated 28-10-2009 of learned Senior Civil Judge, Tank, rejecting their application for setting aside ex parte decree dated 27-10-2007, was dismissed.

2. Learned counsel for the petitioners contended that the Courts below have wrongly decided the matter against the petitioners despite the fact that the petitioners were not served personally after the remand of case from this Court. It was argued that the petitioners were not served in person and none appeared on their behalf before the Court and attendance of counsel marked on behalf of petitioners was not correct and the trial Court has not exercised the jurisdiction vested in it. It was argued that the appellate Court has not taken into consideration this aspect of the case and has wrongly concurred with the findings of trial Court. He also referred to various order sheets of the Court and argued that the trial Court has wrongly marked the attendance of the petitioners as well as their counsel and both the judgments are the result of misreading and non-reading of evidence, hence liable to be set aside.

3. Conversely, learned counsel for the respondent contended that the ex parte decree was passed against the petitioners in earlier round of litigation which was set aside by the trial Court on the application of petitioners, against which, the present respondent came up to this Court and after hot contest, the case was remanded to the trial Court on 1-2-2007, but they did not appear for two years and then moved an application in the year 2009 which is hopelessly time barred. He referred to the order sheets of the trial Court, wherein the petitioners and their counsel used to appear before the Court and fine was imposed upon the respondent/plaintiff for non-production of evidence, which was only possible when the counsel for the present petitioners was in attendance before the trial Court.

4. I have given my thoughtful consideration to the arguments of learned counsel for the parties and perused the record with their able assistance.

5. Perusal of the record reveals that in earlier round of litigation, this Court remanded the matter to the trial Court (Civil Judge, Tank) on 1-2-2007. No doubt the order sheets, as argued by the counsel for the parties, contain the issuance of summons and then the appearance of petitioners and their counsel, but this is not an issue to be resolved as to whether the petitioners put appearance themselves or through counsel, rather the vital point is that when the case was hotly contested by the petitioners in earlier round up to this Court and the matter was remanded to the learned Civil Judge on 1-2-2007, then the petitioners were, legally required to get information about the proceedings. They were proceeded against ex parte on 27-10-2007, after about eight months and during this period the Court waited for their appearance, but they did not bother to inquire about the proceedings as to what happened after the remand of the matter to the trial Court from this Court. Then they moved an application for setting aside ex parte decree on 20-3-2009, which is almost after two years mainly contending that no summonses were served upon them. As observed earlier, it was not the case of summons, rather the petitioners have to be vigilant and inquire about the date or proceedings, because they were present before this Court when the matter was remanded to the trial Court, So, the service of summons, appearance of counsel or otherwise is immaterial in peculiar circumstances of the case and it is the conduct of the petitioners which is to be seen, which is admittedly not above board.

6. The application of the petitioners moved for setting aside the ex parte decree does not contain any explanation as to why they did not inquire about the matter remanded by this Court for more than two years. It is not the case of the petitioners that they were restrained by any reasonable cause from appearing before the Court or at least to inquire about the proceedings. Needless to mention that delay of each and every day has to be explained by the petitioners qua sufficient cause, which is lacking in the instant case. No case is made out for interference in the concurrent findings arrived at by the Courts below.

7. For the reasons mentioned above, the instant petition being bereft of any merit is hereby dismissed. No order as to costs. AG/312/P Revision dismissed.