PLJ 1991 Lahore 165
Present: muhammad MuxiR khan, J Maj. PERVEZ SHAKOOR and 4 others-Petitioners
versus
MUHAMMAD USMAN-Respondent.
Civil Revision No.1.831 of 1990, accepted on 2.10.1990.
Civil Procedure Code, 1908 (V of 1908)--
—-O.IX R.l3-Expa>U> decree-Setting aside of-Application for-Dismissal in default of-Application for restoration-Dismissal of-Challenge to-Petitioners have stated reasons in their restoration application for their and their counsel's non-appearance-They were entitled to substantiate same-Neither any issue was framed nor petitioners were given opportunity to prove cause of their non- appearance and application was arbitrarily rejected—Held: Manner in which trial court has disposed of application of petitioners, cannot/should not be approved by High Court-Petition accepted and case remanded to trial court for fresh decision of restoration application. [P.166JA&B
Cii. Inayatullah, Advocate for Petitioners.
Mr. Hassan Ahmad Khan Kanwai; Advocate for Respondent.
Date of hearing: 2.10.1990.
judgment
On 7.11.1985 Muhammad Usman respondent filed a suit for Specific Performance of agreement to sell of land measuring 235 kanals and 6 marlas situate in village Kalekey, Tehsil Depalpur District .Okara against Major Pervez Shakoor and 4 others, petitioners/defendants, in the Court of Civil Judge Depalpur. The suit was decreed exparte on 11.3.1987. The petitioners/defendants filed application for setting aside the ex-pane decree which was dismissed on 12.11.1988 for non prosecution. On this, the petitioners made application 'for restoration of the application filed by them under Order IX Rule 13 C.P.C. for the setting aside (of) the ex-parte decree. It was stated in this application that the petitioners were residents of Karachi and were not aware of the date of hearing, i.e. 12.11.1988 and their counsel was busy in the election and the Courts were also busy in the election work and as such the default in appearance was not deliberate. This application was contested. The learned Civil Judge, without framing any issue or affording the petitioners/applicants opportunity to substantiate the cause for their non appearance on 12.11.1988, dismissed this application vide order dated 17.4.1989. The appeal filed by the petitioners against this order was dismissed by the learned Additional District Judge Okara on 25.3.1989, hence this revision.
2. Learned counsel for the petitioners mainly contended that the petitioners have been condemned without giving them opportunity to substantiate the cause for their non appearance on 12.11.1988. Learned counsel for the respondent has supported the impugned orders.
3. I have considered the matter carefully. I feel persuaded to agree with the learned counsel for the petitioners. I find that in their application for the restoration of their application for setting aside the exparte decree, the petitioners have stated the cause of their non appearance and the cause of the non appearance of their counsel as well. I feel that if these causes are believed to be true then the same do constitute sufficient cause for their non appearance on 12.11.1988 and as such, the petitioners were entitled to an opportunity to substantiate it. Strangely enough, neither any issue was framed nor they were given any opportunity to prove the cause of their non appearance and the application was arbitrarily rejected. The manner in which the learned trial Court has disposed of the application of the petitioners cannot/should not be approved by this Court. Resultantly, the judgment of the learned Applellate Court cannot sustain.
Pursuant to the above discussion, the revision is accepted. The impugned orders of the Courts below are set-aside and the matter is sent back to the trial Court for fresh decision of the application of the petitioners for the restoration of their application for setting aside the ex-parte judgment and decree, after framing issues and affording the parties opportunity to lead evidence. The parties shall bear their own costs.
(MBC) Revision Accepted.
Present: muhammad MuxiR khan, J Maj. PERVEZ SHAKOOR and 4 others-Petitioners
versus
MUHAMMAD USMAN-Respondent.
Civil Revision No.1.831 of 1990, accepted on 2.10.1990.
Civil Procedure Code, 1908 (V of 1908)--
—-O.IX R.l3-Expa>U> decree-Setting aside of-Application for-Dismissal in default of-Application for restoration-Dismissal of-Challenge to-Petitioners have stated reasons in their restoration application for their and their counsel's non-appearance-They were entitled to substantiate same-Neither any issue was framed nor petitioners were given opportunity to prove cause of their non- appearance and application was arbitrarily rejected—Held: Manner in which trial court has disposed of application of petitioners, cannot/should not be approved by High Court-Petition accepted and case remanded to trial court for fresh decision of restoration application. [P.166JA&B
Cii. Inayatullah, Advocate for Petitioners.
Mr. Hassan Ahmad Khan Kanwai; Advocate for Respondent.
Date of hearing: 2.10.1990.
judgment
On 7.11.1985 Muhammad Usman respondent filed a suit for Specific Performance of agreement to sell of land measuring 235 kanals and 6 marlas situate in village Kalekey, Tehsil Depalpur District .Okara against Major Pervez Shakoor and 4 others, petitioners/defendants, in the Court of Civil Judge Depalpur. The suit was decreed exparte on 11.3.1987. The petitioners/defendants filed application for setting aside the ex-pane decree which was dismissed on 12.11.1988 for non prosecution. On this, the petitioners made application 'for restoration of the application filed by them under Order IX Rule 13 C.P.C. for the setting aside (of) the ex-parte decree. It was stated in this application that the petitioners were residents of Karachi and were not aware of the date of hearing, i.e. 12.11.1988 and their counsel was busy in the election and the Courts were also busy in the election work and as such the default in appearance was not deliberate. This application was contested. The learned Civil Judge, without framing any issue or affording the petitioners/applicants opportunity to substantiate the cause for their non appearance on 12.11.1988, dismissed this application vide order dated 17.4.1989. The appeal filed by the petitioners against this order was dismissed by the learned Additional District Judge Okara on 25.3.1989, hence this revision.
2. Learned counsel for the petitioners mainly contended that the petitioners have been condemned without giving them opportunity to substantiate the cause for their non appearance on 12.11.1988. Learned counsel for the respondent has supported the impugned orders.
3. I have considered the matter carefully. I feel persuaded to agree with the learned counsel for the petitioners. I find that in their application for the restoration of their application for setting aside the exparte decree, the petitioners have stated the cause of their non appearance and the cause of the non appearance of their counsel as well. I feel that if these causes are believed to be true then the same do constitute sufficient cause for their non appearance on 12.11.1988 and as such, the petitioners were entitled to an opportunity to substantiate it. Strangely enough, neither any issue was framed nor they were given any opportunity to prove the cause of their non appearance and the application was arbitrarily rejected. The manner in which the learned trial Court has disposed of the application of the petitioners cannot/should not be approved by this Court. Resultantly, the judgment of the learned Applellate Court cannot sustain.
Pursuant to the above discussion, the revision is accepted. The impugned orders of the Courts below are set-aside and the matter is sent back to the trial Court for fresh decision of the application of the petitioners for the restoration of their application for setting aside the ex-parte judgment and decree, after framing issues and affording the parties opportunity to lead evidence. The parties shall bear their own costs.
(MBC) Revision Accepted.
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