Khalil Ahmad vs Atta Muhammad etc.

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH MULTAN

JUDICIAL DEPARTMENT

W.P.No.5802 of 2018

Khalil Ahmad. Vs. Atta Muhammad, etc.

Sr. No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding Parties’ counsel, where necessary proceedings 18.04.2018. Mian Tahir Iqbal, Advocate for petitioner.

Through this constitutional petition, the petitioner has called in question the order dated 21.12.2017 passed by learned Addl. District Judge, Chichawatni, whereby the civil revision filed by the petitioner was dismissed and the order dated 11.11.2017 passed by learned Civil Judge, Chichawatni was upheld, whereby the learned trial court had set-aside the ex-parte proceedings initiated against respondents No. 1 to 6 by allowing the application filed by them.

2.Brief facts of the case are that the petitioner filed a suit for specific performance of oral agreement entered in the year 1992 against respondents/defendants No. 1 to 6 (‘respondents’) in which the learned trial court vide order dated 17.03.2016 proceeded ex-parte against the respondents. The respondents filed an application for setting aside ex-parte proceedings on 07.04.2016,

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which was contested by the petitioner. The said application was allowed on 11.11.2017 by the trial court and the order dated 17.03.2016 was set aside.

The petitioner filed revision petition before the Addl.

District Judge, which was dismissed on 21.12.2017.

Both the said orders are under challenge through this constitutional petition.

3.Learned counsel for the petitioner argues that even in the previous round of litigation, the ex- parte decree was passed against the respondents, which was set-aside in appeal and the matter was remanded to the learned trial court, where after the respondents again absented themselves in order to delay the matter and their absence was contumacious, thus they were not entitled to relief of setting aside ex- parte proceeding initiated against them.

4.Heard. Record perused.

5.From the perusal of the order dated 11.11.2017 it is observed that the learned trial court has taken into consideration the facts of the case, wherein in earlier round of litigation the matter was ex-parte decreed against the respondents and the said decree was set-aside by the appellate court and the matter was remanded for afresh decision. Thereafter, again the respondents absented from the court and were proceeded against ex-parte on 17.03.2016. They

W.P.No.5802 of 2018

filed application for setting-aside proceedings within a few days on 07.04.2016, which was accepted by the trial court subject to cost of Rs. 3000/- by observing that the matter should be decided on merits instead of technicalities.

6.The claim of learned counsel for the petitioner is that as respondent No. 7 (another defendant) was present in the court and all the respondents including the respondent No.7 had jointly been pursuing the matter, therefore, the said respondents had the knowledge of the proceedings and their absence was contumacious just to delay the matter, hence, they are not entitled to any relief. It has already been observed above that the application was filed within time, which is supported by an affidavit of the respondent, the learned trial court imposed costs of Rs. 3000/- while setting aside order of proceedings ex-parte against the respondents. The said order was upheld by the revisional court in the same terms. The claim of the respondents-applicants was that they had not received intimation of the fixation of the case on 17.03.2016 when they had been proceeded against ex-parte. On the previous date i.e. 15.02.2016 the court had ordered for the service of the petitioner through publication in daily ‘Ab Tak’. Nothing is available on the record to establish their knowledge of

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the proceedings pending before the court on 17.03.2016. It has not been established on the record that the absence of the respondents was contumacious, which could disentitle the said respondents from relief. It is by now settled that technicalities unless insurmountable should not come in the way of justice.

Reliance is placed on Mst. Bundi Begum vs. Munshi Khan and others (PLD 2004 SC 154). Even otherwise, technicalities of law are always avoided and discouraged in order to do complete justice and to ensure that justice is not only done but also seen to have been done. Rules of procedure are enacted for fostering the ends of justice and preserving the rights rather than to stifle the dispensation of justice and unless they are insurmountable, ends of justice, always outweigh the manner of practice and procedure. Reliance is placed on Muhammad Bashir and another vs. Province of Punjab through collector of District Gujrat and others (2003 SCMR 83). In view of the afore-said circumstances, the courts below rightly allowed the application filed by the respondents and set aside ex-parte proceedings against them by imposing costs on the respondents.

No illegality, infirmity or erroneous exercise of jurisdiction has been pointed out in the impugned

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orders. Resultantly, this constitutional petition being devoid of any merit stands dismissed in limine.

(Muzamil Akhtar Shabir) Judge Zeeshan Khan