Najib-ur-Rehman Vs Qazi Laiq

IN THE PESIJA WAR HIGH COURT. BANNU BENCH

(JudiCial I)epwunenl) -'

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civil Revision Petilioii No.292-B of 2013 with CM No.20-B of 2014

JUDGMENT '

Date of hearing 1909.2015

Appellant-Petitioner

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MUHAMMAD YOUNIS THAHEEM, J.--- This judgment is directed to dispose of Revision Petition filed against the judgment and decree of the learned District Judge, Karak dated 05.10.2013 who set aside the cx parte judgment and decree dated 29.9.2012 of the Icarned trial court of Senior Civil Judge , Karak alongwith application for impleadment.

2.Brief facts of the case are that present petitioner instituted civil suit (hr declaratoly decree and

permanent injunction in the year 2002 to the effect that the final seniority list prepared by the then Provincial Urban Development Board vide letter No.AO-1/PUDB/1 1.02.13/103/121 dated 01.10.2001 is against law null and void and prayed in the plaint.

That the plaintiff was employed as Assistant Director in Provincial Urban Development Board on 20.5.1987 on Adhoc basis, certificate to the effect of the PUDB is enclosed as Annexure- "A".

That the plaint jff after appointment was posted in Area Development Scheme Bannu. Plaintiff submitted his arrival report on dated 05.5.1987 in the office of Deputy Director Area Development Scheme J3annu. The copy of said arrival report is enclosed as Annexl4re NB".

That the Adhoc services of the employees of PUDB work however, ordered to be regularized subject to qualifying interview to be conducted through selection board constituted for the purpose by the Managing Director PUDB NWJ'P, Peshawar.

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d. That the plaintiff qualjied the prescribed interview conducted by the such board and the services of the plaintiff were regularized vide ordered 1.09.01/9973 dated 22.03.1988 copy of the letter is Amexure SC".

e. That on receipt of order of regularization of service, the plaintiff submitted an arrival report (enclosed as Anrtexllre-D) before the department to the effect that the plaintiff will accept the offer issued by department of regularization of service subject to the condition if the department will count the previous service of the plaintiff towards seniority and other benefits.

f That the plaintiff submitted arrival report on regularization of service in the defunct PUDB on 02.04.1988 wherein the PUDB accepted the condition as mentioned in Para-5.

g. That the department issued the impugned seniority list contrary to the contract made in between plaintiff and the department as mentioned in para-5 & ittct1

h. That the plaintiff approached the department by submitting an application requesting therein that the department has committed violation of the contract of the service but the department failed to make final decision on departmental appeal of plaint 1ff inspite of lapse of about 6- months long period.

That the department had already count preuious/adhoc service of some of the employees towards seniority and other benefits, but is denying the due right of the plaintiff.

That the plaintiff was an employee of the PUDB and on the introduction of District Govt. system and on restructuring of the Gout; and semi Gout, organizations, the services of the plaintiff have been handed over to Kohat development authority, area Development scheme Karak and now \\ the plaintiff is working under the control of District Govt.

That the department is continuously denying the due right of plaintiff and is committing breach of the contract of service.

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This case has chequered history as once the

suit was dismissed on 8.0 1.2005 against same dismissal order present petitioner filed regular civil appeal No.26/13 of 2005 which was also dismissed by the learned District Judge Karak vide its judgment dated 21.4.2006 and both the said orders and judgments were challenged through civil revision before this court at principal scat and alter hearing, same was accepted and the case was remanded back to the learned trial court vide judgment dated 4.12.2006 and case was remanded back to the trial court for adjudication on merit.

The case proceeded further after remand From this court but present contesting respondent and other respondents disappeared and due to that reason were proceeded exparte and later on exparte decree was passed by the learned trial court of Senior Civil Judge Karak in favour of present petitioner/plaintiff on 19.9.2008. An application to set aside cx parte decree dated 19.9.2008 was filed by the respondent No.3/defendant No.3, i.e Director General CD & MD on 9.10.2008 only, wherein the

respondent No.3 stated some reasons for his non appearance on S 19.9.2008 by contending that he tried to attend the Court but due to law and order situation in the area of Dara Adam Khel and due to incident of Kohat 'Funnel could not reach the court. Afterward arguments on application were heard and application for setting aside cx parte decree was dismissed on 29.9.2012. The relevant portion of the order of the learned trial Court dated 29.9.20 12 is reproduced as below"

"Perusal of the ibid Rules of C.P. C

transpires that pet itioner/defendant

N6.3 has not shoivn any sufficient

cause iv/,icli prevented him from

appearing in i/ic court when the suit

was ca/led for hearing.

Petitio,zer/defendant No.3 is not

entitled to any relief because in spite

of afflirding hint an opportu?:ilj' to

produce evidence in his defense,

pet itioneridefendant No.3 failed to

s/tow s:fficien1 cause which prevented

him ftoin appearance in the Court

when his Suit was called for hearing."

5.The present respondent No.3 while remaining dissatisfied from the order of learned trial Court below dated 29.9.2012, file civil appeal before the learned District Judge, Karak through Director General CDMD, respondent No.3 and raised variety of grounds. Among these grounds, ground No.2 is important and for convenience is reproduced as under:

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6.The appellanh/ respondent No.3 categorically took a very contumacious ground that the road was closed due to above reason and to reach the Court helicopter was not available to him.

It is pertinent to mention that beside Kohat tunnel there are two other roads, one from Peshawar to Karak, adjoining Pindi Road and other passage which is old Peshawar Kohat hilly track road known as Kotal pass opens from the FC Kotal I landi Sand Post Dara Adam Khel to Kohat. -

7.The learned District Judge after hearing also dismissed the above said appeal on 04.03.2010. Therefore, the respondent No.3 filed Civil revision petition before this Court at principal seat which was accepted and case was remanded back for decision of application dated 9.10.2008 after recording pro and contra evidence to decide the Application and the learned Court of Senior Ctvil Judge Katak recording evtdenee and hearing, dismissed the application for setting aside ex parte decree on 29.09.2012, however, the learned District Judge, Karak vide its judgment and decree dated 05.10.2013 set aside the order dated Al It-

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29.9.2012 of the learned trial Court of Senior Civil Judge and set aside exparte decree with the direction to decide the case on merit. The said judgment of the learned District Judge Karak has been assailed through an instant Revision petition on the grounds mentioned therein.

Besides this petition, four (4) other persons submitted application for iinpleadment through their counsel and (he present petitioner submitted replication thereto.

The arguments of learned counsel for the parties and the learned AAG heard. Record perused.

From the penisal of record and evidence recorded in application for setting aside exparte decree and the grounds raised by the appellant/respondent No.3 it divulges that the conduct of the present respondent No.3 remained contumacious and negligent because previous to the present cx parte decree dated 19.09.2008 an order of exparte proceeding was passed but present respondent No.3 did not move any application for setting aside ex parte

proceedings and only filed an application for setting aside exparte decree which was dismissed on 15.10.2009 and the present respondent challenged the dismissal order dated 15.10.2009 before the learned District Judge, Karak and appeal met the same fate on 04.10.2010. The exparte decree dated 19.9.2008 and judgment of learned District Judge Karak were assailed before this court at principal scat through revision petition which was accepted and the case was remanded back for decision on application dated 9.10.2008 after recording pro contra evidence within 3 months.

Ii. The learned counsel for petitioner responded by advancing arguments that applicants would not be affected if justice is done to his client as prayed for in his plaint as the seniority list would be acted upon according to rules, regulations and said contract, resultantly the applicants would be placed on their right and deserved position. The learned counsel further added that this application is based on malafide and is filed after delay of so many years to damage the cause ofjustice.

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This Court while going through the detail of the merit of the case, reaches to the conclusion that the teamed appellate Court has not adverted to the real position about negligent and contumacious conduct of the respondents and has fallen into illegality by accepting appeal. In this respect reliance is placed on judgment of this Court reported as 2003 ML!) 1836 and 2004

ML!) 1346.

So, in the light of above discussion this Court do not agree with the arguments and stance taken by the learned counsel for respondents that helicopter was not available to him to reach the Court but from this it is proved that he was in knowledge of the proceeding and respondent cannot lake refuge in such like unrealistic and ridiculous tell tale story

14.Now the other point for determination is the impleadment application, on which arguments were also heard.

The grounds raised for impleadment do not appeal to the mind of this court as this is an old case and applicants would not he

affected adversely if any judgment is passed in the instant revision petition.

15.So in the light of above discussion, the instant Civil revision petition is allowed, the impugned judgment of the learned appellate Court is set aside while exparte decree passed by the learned court of Senior civil judge Karak is restored in favour of the petitioner and application No.20.D of 2014 for impleadment is dismissed.

Announced. ('1/

JUDGE

C*1iFtr tOTRUE COPY

L:A_U f Pesh.war ftqi 1.mnt, Bench

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Author,scd UnIor Arnc.ic 87 at lhc. Qnun-e S .iti.rdat Order $II