2014 PLP 1674 (CLC)

ABDUL LATIF KHAN, J.

Aggrieved of the order dated 7-3-2013 passed by the learned Additional District Judge-III, D.I.Khan vide which his appeal against the order dated 11-1-2013 of learned Civil Judge-IV, D.I.Khan, dismissing his application for setting aside the ex parte decree 3-5-2012, was dismissed, the petitioner has filed the instant revision petition.

2. Learned counsel for the petitioner contended that the Courts below have passed the impugned orders on presumptions, resulting into miscarriage of justice. It was argued that Article 181 of the Limitation Act was applicable to the matter which provides three years to file application to set aside ex-parte decree, but both the Courts failed to appreciate the legal position and committed illegality, fatal to case. It was added that time and again it has been held that cases are to be decided on merits, rather than on technicalities and should not be let in the way of dispensation of justice. It was argued that plaintiff failed to produce postman in order to prove delivery of notice Talb-e-Ishhad and no decree can be granted in his favour due to this deficiency. It was added that plaintiff failed to prove his case and keeping in view this aspect of the case, the ex parte decree ought to have been set aside by the Courts below.

3. Conversely, learned counsel for respondent No.1/plaintiff contended that previously the petitioner was served but did not appear before the Court and was placed ex parte and after recording ex-parte evidence, decree was granted in favour of respondent/plaintiff on 27-1-2011. Then petitioner applied for setting aside the ex-parte decree which was accepted on cost. He contended that after filing written statement, the petitioner was once again placed ex parte. It was argued that petitioner has no interest in the proceedings and is bent upon to harass the respondent, which is highly deplorable and instant petition deserves dismissal.

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

5. The perusal of record reveals that previously despite service, the petitioner did not turn up and the trial Court was left with no option but to place him ex parte. Ex parte evidence was produced by the plaintiff and on 27-1-2011, suit was ex parte decreed. The petitioner moved application on 15-2-2011 without showing his source of information, just one day prior to completion of thirty days, period of limitation prescribed under Article 164 of the Limitation Act, which shows his conduct and his awareness of the proceedings but in order to harass the plaintiff kept mum and moved application at the last moment, which was however accepted on payment of Rs.2500.

6. The petitioner jointed the proceedings, contested the suit by filing written statement but again absented himself from the Court on 8-3-2012, resulting into ex-parte decree against him, once again. He moved another application on 7-6-2012 for setting aside ex parte decree, which was concurrently dismissed by the Courts below and rightly did so, as the conduct of the petitioner qua mischief of limitation warrants so, in accordance with law. The application is covered under Article 164 and not Article 181 of the Limitation Act. It is barred by time as he has moved the application on 3-5-2012 to set aside the order dated 8-3-2012. No plausible reasons or sufficient cause shown in the application, except the omnibus insufficient reason that he was out of station in connection with business and that too not supported by even tentative piece of evidence. His plea, if taken as true, his counsel, agent or anyone on his behalf could put appearance before this Court but no serious effort made. Needless to mention that delay of each and every day has to be explained in accordance with law, but nothing in this regard finds mention in the application. He had disclosed that he acquired knowledge twenty days prior to filing application and prayed for condonation but no reasons assigned for condonation. His petition is barred by 53/54 days. His conduct also disentitles him to lenient view as he did not turn up on the first occasion despite service and then he absented himself again and did not bother to honour the Court proceedings and as such not entitled for any relief and has been rightly dealt with by the Courts below strictly in accordance with law, warranting no interference in concurrent findings arrived at in the impugned judgments.

7. For the reasons mentioned above, the instant petition being without substance is hereby dismissed. No order as to costs. AG/322/P Revision dismissed.