Muhammad Aslam Dar VS Fazal-ur-Rehman Khan etc

FORM NO.HCJD/C

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT,

ISLA ABAD

CASE NO. crvrL REvrsroN No.31l2012

Muhammad Aslam Dar Vs.

Fazal-ur-Rehman Khan Niazi & Another

Date of hearing 03.o5.2012

Petitioners by M. Bashir Khan, Advocate

Respondent by Raja Muqsit Nawaz Khan, Advocate

NOOR-UL-HAO N. QURESHI J.- Ex-partc judgment and dccrce clalc<l 03.11.2010 and ordcr datcd 15.11.2010 passcd by lcarncd Oivil Judgc, Islamabad and irnpugr-rcd .judgmcnt and dccrcc datcd 21 .3.2012 passcd hy lcarncd Additional l)istricl Judgc, Islamabad have becn impugned through tho instant C.R.

2.Leading lacts of the casc as oontcnded in thc C.I{ whcrcby rcspondent No.1 filcd a suil for rccovcly of Its.245,000/- against the pclitioncr and rcspondcnt No.2. thc pctiliorrcr appcarcd. hlcd his writtcn slatcmcnl also issttcs wcrc frantcd on 02.2.2007 whcn ltlr thrcc datcs of hcaring, matlcr was fixcd lbr cviclcncc of plaintifl/rcsponclcnl No.1 who was lbund abscnt.

3.'t'ho cx-partc ptocccdings wcro initiatcd against thc pctitioncr on25.7.2007 whcn no cvidcncc of plaintiff was availablc thcreforc, on moving an application. oxpartc procccclings wcrc sct asidc vidc ordcr datcd 08.12.2007 .

4.Agail thc casc was fixed for cvidcncc of plaintilf but for 16 datcs of hcaring, cvidcncc by plaintiff sidc was not produced which datcs commcncing liom 16.2.200t1 to 03.2.2009 a pcriod sprcad ovcr about onc ycar.

5.Allcgcclly,. thc plaintiff/respondcnt No.l assurcd thc pctitionor that he will withdrar,v thc suit. 't'hc pctitioncr with such salislaction prooccdcd abroad on furnishing assur-ancc but thc suit was clcorccd on 03.11.2010 wl'rich infact as a rcsult of lraudulcnt conduct of plaintiff/respondent No.1.'l'he petitioncr accluiring knowlcdgc aboul a wccl< prior to 21.6.2011 that cx-partc dccrcc has bccn passcd on 03.11.20t0 whctt uoticcs lbr 'l'hc pctitioncr at i:xccution wcro issuccl to thc pctitioncr at his addrcss in Islamabad. rclcvant timc wars in Canada.

'l'hc pctitioncr through his attorncy filcd an application on 21.6.2011 lor sctting asiclc ex-partc judgmenl and clccrcc datcd 03.11.2010. mcntioning thcrcin that tlrc pctitioncr upon knowlcdge aboul wccl< ago, nrovcd thc samc.

6.I{oply to thc said application was also hlcd but thc lcarnod Civil Judgc, Islamabad without oonsidcring such matcriality set forth in the applioation, dismissed the samc vidc order datcd 15. I 1 .201 1 .

7.Challcnging thc said ordcr, petitioner filcd appcal on23.12.2011 bcforc lcarned l)istriot judgc. Islamabad which was transmittcd to lcamcd Additional District Judge who vidc judgmcnl and dccrec datcd 21.3.2012 has bccn plcascd to dismisscd the appcal, lhcrcforc. instant C.l{ prcfcrrcd.

8.On rccciving noticc, rcspondcnt appearcd through counscl.

9.Learncd counsel for the pctitioner argued that case diary dated 12.7.2001 shows a compromise was going to be prcsented before thc court ot 23.7 .2001 . hc rcfcrrcd thc judgmcnt da1ccl 03.11.2010 whcrcby it was obscrvcd that dcfcndanl No.2 did not appcar dcspitc scrvicc of summon, thcreforc, proceedcd cx-partc. IIc also pointcd out para-6 of the judgment which provides that after framing of issttcs no onc turncd up, thercforc, procecded ex-parte vide ordcr daled 24.6.2010 and thcrcforc, cx-partc cvidcncc was summoncd. IIc rcfcrrcd pagc 28, his application movcd on behalf of pctitioncr by his counscl whcrcby at para-3 hc informcd that pctitioner had no knowlcdge about cx-parte dccrcc as hc prooccdcd abroad. IIc also rcferrcd pagc 36 which is an ordcr passcd on 15.11.2011 in its para-4 it is apparcnt that Aslam Dar himsclf appcarcd in thc courl on 12.1.2007, writtcn statemcnt was filod. issues wcrc framcd but dcspitc the mattcr fixcd 'l'hus it was for cvidcnce no one turncd up, thcrcforc, cxpartc procccdings wcrc initiatcd. fixcd lor cx-partc cvidenoc. IIc argued that undcr such circumstattccs. Articlc 164 of I-irnitation Act would not apply instcad whercof Arliclc 1tl1 would apply. IIc argucd that grdcr 9 Itulc 6 C'l'C having crucialty in this cntirc casc in vicw thcrcof applicability of rclcvant Articlc could bc asocrtaincd. Article 764 providcs 30 days timc for prcfcrring applichtion to get cx-partc dccrce set aside whcrcas Articlc 181 providcs whcn right to apply oocllrs. IIc argued that casc of pctitioncr docs not covcr by articlc 164 but it is covcrcd by articlc 181. thcrcforc, both thc courts bclow havc crred in dcciding thc applicatior-r by lrial court and appcal by appellatc courl as both thc courts havc not appliod lhcir mind judioially. 'l'hc ooncurrcnt hndings by both thc oourts bclow suffcr from illcgality without applicalion of proper articlc of limitation act and thcrc aro strong r"urum availablc bcforc thc court to intcrferc within such finclings. In supporl of his contcntions, hc rcferrod ordcr 9 ltulc 6 CPC which is rcproduccd hcrc undcr:- "l,rocedure when only plaintiff oppears- (l) Where lhe plainlifl appears untl the tle.fendant does nol appear when lhe suit is called on for hearing, lhcn

u) lYhen summons duly served (a) iJ it is provecl lhat lhe summons v,as duly served, the Court, lhe Courl may proceed expurla und puss decree withoul recording evide nce,'

h) When sumnrons not duly served, if il is not proved lhal the sumrnons v,as duly served, lhe Courl :;hall direcl a second summons lo be issuetl und served on lhe clefendant,'

c) When summons served, but not in due time, if it is proved lhat the sltn'tmons u,as served on the de.fendant, but not in sfficienl time to enable him to ctppear und answer on lhe day ./ixed in lhe summons, lhe Court sholl postpone the hearing o.f the suit lo u .fitlure day to be .fixed by the Cottrl, and shall direcl nolice of such day lo be given lo lhe de.fendant.

(2)When it is owing lo the plainti//''s de.fault lhat lhe sumnxons wos not duly served or wos not served in sfficienl tinte, lhe Courl shall order the plainti/f to pay lhe costs occasioned by lhe poslponement"

10.tlc also rclbrrod ordcr 9 Itulc 13, wherc thc rclcvant provision of law to scck sctting aside dccrcc ex-parte against defcndant.

11.For thc convenienoe Article 164 and lttl of limitation Act arc also rcproduccd here under:

Description of Suit I'eriq{-of t,intitqtiOn 1'imefront which period beS4irts lo run

'l'he date c.tf the decree or I 61. llt' a rlt'fendunl,.for "an order 'l'hirtv dcn's lo set uside a decree pcrssecl exparle where the suntntons wqs nol duly served, when lhe applicant has knowledg,e o/'the decrcc

18 t Applicatrcn for which nct period ol Three years When the right tr.t apply l.intitation is provided elsev'here in accrues lhis sclrccfule or by seclion 18 o./'the L'ode o/ Cn'rl l'rocecltrre, 1908.

IIc rclicd upon following casc law in support of his contontions a) PI,D 1981 SC 21 b) PLD 1986 I'eshawar 8l c) 2007 MLD 985 d) 2001 cLC 1976 e) l'l,D 2002 Supreme Court 491 /) PLD 2002 Supreme Court 495

12.On thc other side, lcarned counsel lbr thc rcspondcnt argucd thal thc pclilioner himsclf rcmaincd abscnt despite knowlcdgc of thc pcndcncy of sui1. IIc filcd writtcn statemcnt in his dcfcncc but subsequently causcd his disappearanoc which was ncilhcr within thc knowledgc of court nor anybody. 'I'hc plea raised ol' compromisc bctwcen thc partics is an old issuc pcflaining to thc ordcr 12.7.2007 having no conncction wilh thc subscqucnt dcvclopmcnls. 'l'hc said compromiso as apparcnt frotn thc diary rcferrcd was 1cl be subrnittcd on 23.7.2007 which positivoly lcading towards an aspcct that il was mcrcly an attcmpt but could not atlaincd finality that is why subscqucnl to that cvcnt parties were contesting their rights through their counscl but suddcnly pctitioncr disappcarcd without information furnishcd to thc court.

13.Alter lapse of sufficient 1imo, hc without appcaring bcforc thc oottrt movcd an application through his oounscl who sworn his own alfidavit which is oontrary to 1hc avcrmcnt of thc pctitioncr raiscd in thc instant civil rcvision. No any documcntary evidence in support of oontentions raised either bcforr: thc trial court, appcllatc court or

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cvcn bcforc this courl is produccd. A vague plca sincc takcn by pctitionor whioh has not bc bclicvcd by both the oourt hclow that is why with sullicicnt rcasons. lcarncd courts below havc passcd thc respcctive ordcrs and judgments.

14.Ilc argucd that rcvision rcquircs very strong basc to intcrfcrc whcn concurrcnt findings havc bccn dclivcred by the both court bclow and thcrc is no such lcgal plca raiscd as to how the decision of both the courts bclow suffercd lrom lcgal and factual infirmity. Ilc also cmphasizcd that by wrong proposition of law, pctitioncr is lrying to rc- alivc his claim which as a result of final dccision has no any basc to stand. IIe crnphasizcd that only articlc 161 of limitation ac1 would apply which in clear terms providcs the rcmcdy and timc limit. Likc-wisc ordcr 9 Itulc 6 is vcry much clcar and in casc il thc pctilionor has not bccn scrvcd with thc sumnlons, issucd by trial court, such bcncfit hc could havc olaimcd but whcn hc himsclf was contcsling thc suit cvcn, hc filcd written stalcment whcn such a vague plea hc can not now claim of his ignoranoe. IIc howcvcr rclied upon following case law in support of his oontcntions: a) 2005 SCMR 316 b) 1984 SCMlt 5o1 c) 2008 SCMI| 1117 d) 2008 sc:A[^t 287 e) 2006 SCMI? 631 /) PLD 1998 Peshawar 13 s) 1999 CLC I 17 h) 1997 CLC 811

i)PLD 1979 SC (AJ A g t20

l-s Argnrncnts hcard. rccord pcruscd. rclcvant casc law has also bccn taken into considcralion

16.lirom thc rcoord it appears that thcrc is no plausiblc cxplanation furnishcd by pctitioncr to subslantiate his suoh pk:a of remaining outside the Pakistan or procccded abroad.

17.Mcrcly by filing an application through attorncy docs not mean that hc procccdcd abroad nor his such plea of compromisc is provcd through any othcr inclcpcndcnt or corroborativc piccc of evidcncc, no documcnt in support thcrcof has also bccn l-urnishcd eithcr bclbrc thc trial court, the appcllatc court as wcll as bcforc this (lourt. Morcovcr, thc casc lar,r, prcsentcd in support of contcntions raiscd by lcarned counscl lbr pctitioncr is no1 appcars to bc hclpful to him as hcavy burdcn is casling upon thc pctilioncr 1o provc his such plca.

Itt. Otherwise, basic principle is vigilance no1 indolcnce and whcn thc party has no right towards his own intcrcst. the court can not be instrumcntcd to roscuc thcm litr thoir continuous indolcncc for a sufficicnl pcriod dcspitc tho fact on rccord that hc al1cr filipg wriltcn statcmcnt callsc his disappcarancc whcn cxpartc dccision initiatcd by trial cour1.

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19.'l'hc <;asc law prcscnted by learncd counsel Ibr rcspondent is sulficiently supporting his strong plca. 'l'hc ordcr and judgmcnt passccl by trial court datcd 03. 1 1 .2010 and ordcr dated 15.11.2010 passcd by learncd Civil .Tudgc, Islamabad and irnpugncd jndgmcnt and dccrce datcd 21.3.2012 passcd by learncd Additional I)istrict Judgc, Islamabad rcspcotivcly arc wcll spcaking and covcring all thc aspects factual as woll as lcgal, thcrcforc. I llnd no any lcgal infirrnity in both thc ordcrs whir:h requirc inlcrfercnoe through instant C.lt. Othcrwisc for thc Civil ltcvision, thcrc rccluircs vory slrong basc on lcgal sidc and thc burdcn casting upon the shouldcr of pctitionor to provc thc illcgality in both thc dccision of oourts bclow which in my humblc vicw is cntircly lacking. IIcnoc, inslant Civil l{cvision mcrits no consideration and samc is hcreby dismisscd.

(NOOR-UL-H Hr)

J G

Announced in Op en Court on O?- OS'

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Uploaded By : Engr. Umer Rasheed Dar