District Officer etc vs Ahmad Sultan

2012 YLR 2250

[Peshawar]

Before Qaiser Rashid Khan, J

DISTRICT OFFICER (FEMALE) and 2 others---Petitioners

Versus

AHMED SULTAN and 2 others---Respondents

C.R. No.124-A of 2012, decided on 23rd April, 2012.

(a)Civil Procedure Code (V of 1908)---

----O.IX, R.13---Limitation Act (IX of 1908), Art. 164---Application of setting aside of ex parte decree passed against government official---Delay, condonation of---Pleas of defendant (government functionaries) were that his representative was transferred/promoted, thus, he could not appear in court on relevant date; and that valuable government property was involved in the suit---Validity---Record did not support transfer/promotion of representative of defendant---Plea of involvement of valuable property of Government in suit would not help the defendant---Trial Court and Appellate Court had on various occasions set aside ex parte decree passed against defendant, but even then sanity and sense of responsibility had not returned to him---Government official was supposed to act more responsibly than ordinary people---Conduct of defendant was not above board---Equality before law was not only enshrined in the constitution, but was also a tenet of Islamic Jurisprudence---Courts of law would not be supposed to apply different yardsticks to persons hailing from different strata of society which included even government officials---Defendant had himself to blame for his failings in the discharge of his duties--- Defendant's conduct had belied contents of application itself---Application was dismissed in circumstances.

(b)Public functionaries---

----Government officials would be supposed to act more responsibly than ordinary people.

(c)Islamic Jurisprudence---

----Administration of justice---Equality before law---Government officials and ordinary people--- Courts of law were not supposed to apply different yardsticks to persons hailing from different strata of society be that even government officials.

Muhammad Nawaz Khan Swati, A.A.-G. for Petitioner.

Nemo. for Respondent.

Date of hearing: 23rd April, 2012.

JUDGMENT

QAISER RASHID KHAN, J.---Aggrieved from the judgment and order dated 17-10-2011 of the learned Additional District Judge-V, Abbottabad vide which he dismissed the appeal filed by the petitioners against the judgment and order dated 21-3-2011 of the learned Civil Judge-I, Abbottabad dismissing the application of the petitioners for setting aside ex parte decree dated 22-7-2009, the petitioners have filed the instant revision petition.

2.Arguments heard and record perused.

3.Brief and essential facts leading to the present petition are that Ahmad Sultan, respondent No.1 (Now dead and being represented by L.Rs.) filed a suit seeking declaration to the effect that he is owner of land measuring 2 Kanals bearing Khasra No.892/580/1, situated in village Sherwan, Tehsil and District Abbottabad and Mutation No.1915 dated 19-11-1986 in favour of defendants Nos.1 to 4 is wrong, against law and facts, being based on fraud and without consideration is liable to be cancelled. As a consequential relief, the respondent also prayed for possession of the suit-land or compensation thereof at the market rate. Initially, the respondent was granted ex parte decree vide judgment and decree dated 22-7-1999, however, the said ex parte decree was set aside in appeal by the learned District Judge, Abbottabad vide order dated 15-6-2002 and after remand was contested by the petitioners/defendants by filing written statement. The petitioners/ defendants were again proceeded against ex parte by the learned trial court on 29-7-2004 but the ex parte proceedings were set aside on 19-10-2004. Again the suit was decreed ex parte against the present petitioner's on 15-6-2005, which was set aside by the trial Court on acceptance of application of the petitioners vide order dated 22-6-2006 and the proceedings commenced in the suit. The suit of the respondent was again decreed ex parte for the third time on 22-7-2009 due to absence of petitioners during the proceedings. The petitioners filed a time barred application for setting aside ex parte decree on 1-12-2009, which was dismissed by the learned trial Court vide judgment and order dated 21-3-2011 and the appeal preferred before the learned Additional District Judge-V, Abbottabad, too was dismissed vide judgment and order dated 17-10-2011.

4.The argument of the learned A.A.-G. that the reason for non-appearance before the learned trial Court was the transfer/promotion of the representative of the petitioners is not supported by the record. The other argument advanced by the learned A.A.-G. that valuable

property of the government is involved in the case is also of little help to the petitioners. It is one such case where grave negligence apathy and indifference stand out as its hallmarks. The learned trial court and the learned appellate court were more than magnanimous to the petitioners when they were obliged on various occasions by setting aside the ex parte proceedings and ex parte decrees passed against them but sanity and sense of responsibility never returned to the petitioners. Government officials are supposed to act more responsibly than ordinary people but in the present case their conduct was not above board. Equality before law is enshrined in our Constitution and above all is the basic tenet of our Islamic Jurisprudence. Courts of law are not supposed to apply different yardsticks to persons hailing from different strata of the society, be that even the government officials. The petitioners have no one to blame but themselves for their failings in the discharge of their duties. Their conduct belies the contents of the revision petition itself.

5.For reasons stated above, this revision petition being bereft of any merit is dismissed in limine.

SAK/177/P Revision dismissed in limine.