Ex parte application | Petition against unilateral action rejected The Lahore High Court rejected the application to set aside the ex-parte judgment, holding that the appellant did not satisfy the special circumstances and legal requirements, and that he had given conflicting statements regarding his knowledge of the judgment and the short affidavit. Filed an application with Date of hearing 22-10-2024 F. A. O. No. 68769 of 2017
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| Petition against unilateral action rejected The Lahore High Court rejected the application to set aside the ex-parte judgment, holding that the appellant did not satisfy the special circumstances and legal requirements, and that he had given conflicting statements regarding his knowledge of the judgment and the short affidavit. Filed an application with Date of hearing 22-10-2024 F. A. O. No. 68769 of 2017 |
یہ فیصلہ جaved احمد شفیق کے اپیل کے بارے میں ہے جو لاہور ہائی کورٹ میں دائر کی گئی تھی۔ اس کیس کا مرکزی موضوع ایک ex-parte فیصلہ کو منسوخ کرنے کے لیے دائر کی گئی درخواست کے حوالے سے تھا۔ اس کیس کے اہم نکات درج ذیل ہیں:
1. ایکس پارٹے فیصلے کو منسوخ کرنے کا وقت: اپیل کنندہ نے دعویٰ کیا کہ اسے ex-parte فیصلہ منسوخ کرنے کے لیے تیس دن کا وقت ملنا چاہیے، جو کہ ضابطہ دیوانی کے آرڈر XXXVII رول 4 اور آئین کی 164 ویں دفعہ کے تحت ہے۔ تاہم، عدالت نے اس موقف کو مسترد کرتے ہوئے کہا کہ اپیل کنندہ نے "خصوصی حالات" ثابت نہیں کیے ہیں جو فیصلہ کو منسوخ کرنے کے لیے ضروری تھے۔
2. علم ہونے کی غلط تفصیل: اپیل کنندہ نے اپنی دوسری درخواست میں یہ دعویٰ کیا کہ اسے فیصلے کے بارے میں کس طرح علم ہوا اور کب ہوا، لیکن یہ تفصیلات اس کے پہلے بیان سے متصادم تھیں۔ عدالت نے اس بات کو شک کے طور پر لیا اور کہا کہ اس میں بے قاعدگیاں پائی جاتی ہیں۔
3. چھوٹے حلف نامے کا استعمال: اپیل کنندہ نے چھوٹے حلف نامے کے ساتھ درخواست دائر کی، جس میں وضاحت نہیں کی گئی تھی کہ چیک کی رسید اور دیگر تفصیلات کے لیے کون سی قانونی وجہ ہے، جس کا عدالت نے نوٹس لیا۔
4. فیصلہ مسترد کرنا: عدالت نے اس درخواست کو مسترد کر دیا اور کہا کہ اپیل کنندہ نے نہ تو "خصوصی حالات" ثابت کیے ہیں اور نہ ہی قانونی تقاضوں کو پورا کیا ہے، اس لیے ex-parte فیصلہ برقرار رہے گا۔
مجموعی طور پر، اپیل کو مسترد کر دیا گیا اور اس کے خلاف کوئی اخراجات کا حکم نہیں دیا گیا۔
HCJD A-3 8
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
F. A. O. No. 68769 of 2017
Javed Ahmad Shafqat
versus
Tariq Ali
JUDGMENT
Date of hearing
22-10-2024
Appellant by:
M/s Hamid Iftikhar Pannu
and Saad Hayat Pannu,
learned Advocates.
Respondent by:
Mr. Javed Ahmad Malik,
learned Advocate.
Sultan Tanvir Ahmad, J:– The present appeal
is directed against order dated 10.05.2017, whereby, the
learned trial Court has rejected an application seeking
to set-aside ex-parte decree dated 04.05.2016 and at the
same time leave application of the appellant has been
dismissed.
2.
The relevant facts of the case are that
the respondent filed suit dated 18.04.2013 (the „suit‟),
under Order XXXVII of the Code of Civil Procedure-
1908 (the „Code‟), for the recovery of Rs. 4,300,000/-
on the basis of cheques No. 18848687, 18848694,
18848693, 18848690, 18848691, 18848692 and
F.A.O. No. 68769-2017
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18848689 (the „cheques‟).
3.
The appellant was proceeded against ex-parte
vide order dated 21.06.2013. The ex-parte evidence was
recorded and thereafter on 23.09.2014 judgment was
passed in favour of the respondent for recovery of the
amount involved in the cheques with costs and the
prayer to grant mark-up was turned down.
4.
On 12.06.2015 the appellant filed an
application seeking to set-aside the ex-parte judgment
and to grant the leave, which was dismissed vide
judgment dated 03.02.2016. Later it was revealed that
no decree along with judgment dated 23.09.2014 was
prepared upon which an application was instituted by
the respondent and as a result thereof the learned trial
Court proceeded to prepare ex-parte decree on
04.05.2016. An appeal bearing No. 268-2016 instituted
by the appellant against the judgment dated 03.02.2016
was already before this Court. Upon realizing that the
decree is prepared on 04.05.2016, the learned counsel
for the appellant gave a statement before this Court that
a fresh application to set-aside the decree dated
04.05.2016 has been filed. His appeal was disposed of
and in view of the submission of the learned counsel for
the appellant, the learned trial Court was directed to
decide the application afresh, in accordance with law.
This second application dated 19.05.2016 as well as the
leave accompanying the same was dismissed vide order
dated 10.05.2017. Resultantly, the present appeal.
5.
Mr. Hamid Iftikhar Pannu, learned counsel for
the appellant has relied upon various judgments and he
has stated that the impugned order is result of
F.A.O. No. 68769-2017
3
application of incorrect law and as per mandate of
Order XXXVII Rule 4 of the Code and Article 164 of
the first schedule to the Limitation Act-1908 (the „Act‟)
thirty days time period was available to the appellant
for filing application to set-aside ex-parte decree dated
04.05.2016. He has stated that the learned trial Court
has wrongly reached to its conclusion that the appellant
has failed to file the leave application within ten days
which required rejection of leave application.
6.
Mr. Javed Ahmad Malik, learned counsel for
the respondent has vehemently opposed this appeal and
he has argued that the appellant in any case was obliged
to file leave application within ten days after
preparation of decree, whereas, the same is filed after
fifteen days despite the fact that the appellant was
already a participant in the proceedings before the
learned trial Court as well as he instituted F.A.O. No.
268 of 2016 and leave is, therefore, correctly rejected as
per the law settled in case titled “Mansoor Ahmad
versus Muhammad Iqbal” (1994 SCMR 560). He has
further contended that only a short affidavit is attached
with the leave application which is in defiance of Order
XXXVII Rule 3(1) of the Code; that the said provision
of law requires to disclose such facts as would make
it incumbent on the holder of negotiable instrument
to prove consideration or the other facts that it
deemed sufficient to support the application, upon
affidavit.
7.
I have heard the arguments of the learned
counsel for the parties and perused the record with their
able assistance.
F.A.O. No. 68769-2017
4
8.
There is no dispute as to the settled
proposition that thirty days time period is available to
defender from the date of knowledge of ex-parte
decree. This is when the defender has not participated
in the proceedings and it is apparent from record that he
never had knowledge of such proceedings. The learned
counsel for the appellant is also correct in his argument
that Order XXXVII Rule 4 of the Code specifically
empowers the Court to set-aside the decree, when
special circumstances are available. However, the
present case has its peculiar facts and circumstances
which perhaps can rarely arise. The judgment was
passed on 23.09.2014. Both sides never pointed out that
no decree was prepared. This remained the position
until the respondent had problem in execution who then
made an application dated 30.04.2016. Consequently,
the learned Court prepared the decree on 04.05.2016.
The appellant was aware of the judgment who instituted
first application dated 12.06.2015 (hereinafter called as
the „first application‟) which was contested on its
merits but the first application failed. The appellant
filed an appeal bearing No. 268 of 2016 wherein the
following order was passed:-
“As per office report, the notice has been
served upon the respondent but no one has
entered appearance on behalf of the respondent
today, therefore, the respondent is hereby
proceeded against ex-parte.
2. Learned counsel for the appellant submits,
that the decree sheet has been prepared in this
case on 04.05.2016 and the appellant has already
filed an application for setting aside the ex-parte
decree before the concerned Court and if a
direction is given to the learned Trial Court to
decide the same strictly in accordance with law,
the appellant will be satisfied.
3. In view of the submission made by learned
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counsel for the appellant, the Trial
Court/Additional District Judge is directed to
decide the application of the appellant strictly in
accordance with law.
4. This appeal is disposed of accordingly.”
9.
Before passing of the above order, the
appellant had already filed an application dated
19.05.2016 (hereinafter called as the „second
application‟) to set-aside the ex-parte decree along with
a leave application. In paragraph No. 3 of the second
application the appellant has set-up the mode of
knowledge of the judgment dated 23.09.2014 through
one Samar, a clerk of Mr. Shahid Buttar-learned
Advocate, alleging that the said learned Advocate was
defending the criminal trial of the appellant. The period
and grounds of knowledge are prior to the institution of
the first application. I would like to reproduce
paragraph No. 3 of the second application:-
“3. On 04.02.2015, the respondent/plaintiff
instituted petition for the execution of the
decree though no decree had been drawn
after the judgment dated 23.09.2014. The
petitioner was not served in the execution
petition as well and he was telephonically
informed about the pendency of the Execution
petition on 05.05.2015 by an Advocate's Clerk
namely Samar who is working in Ferozewala
courts. The counsel with whom Samar is
working namely Shahid Buttar had remained
petitioner's counsel in the criminal trial of the
FIR registered by the respondent so the said
clerk was aware of the particulars of the
matter. The petitioner engaged Shahid Buttar
Advocate for proceeding in the matter who
submitted power of attorney (Vakalatnama)
on his behalf before the Executing Court on
08.05.2015 and the matter was adjourned for
11.06.2015 for the appearance of the
petitioner in person.”
(Underlining is added)
7
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10.
The appellant had never set-up the above
mode of knowledge in the first application. It appears
that above specific development in mode of knowledge
is due to the reason that vide judgment dated
03.02.2016 (i.e. the judgment in the first application)
the learned trial Court had already observed that the
appellant has given the same address that is mentioned
in the suit and he has admitted that his address in the
suit is correct where he was served through ordinary
mode, courier service and as per the observation of the
then learned Judge, proof of the same was available. It
is also evident from the record that the appellant in
pursuance to the then pending execution, which was
initiated on 07.02.2015 under the misconception that
decree was also passed, appeared on 08.05.2015 and
then kept on seeking adjournment without raising any
objection. Facing this situation the appellant has
modified his grounds as well as the mode of
knowledge, in the second application.
11.
I am cognizant of the fact that no one should
be prejudiced because of mistake of the Court, which
has not prepared the decree for a long time period but
this does not mean that litigant should be allowed to
make developments in his case that too on the crucial
points. I am not convinced that the appellant came to
know about the case in the manners and on the date as
pleaded in the second application. Otherwise, he would
have taken the above reproduced plea in his first
application.
12.
Much focus has been made in the second
application as to the law that thirty days period is
available to the appellant for seeking to set-aside the ex-
F.A.O. No. 68769-2017
7
parte decree by referring to different cases but this
second application lacks “special circumstances”,
which are also essential to be shown for seeking to setaside the decree and for giving leave to the defender, if
it seems reasonable to the Court to do so. In the absence
of existence of “special circumstances” the defender of
the suit of summary procedure is not entitled to the
relief under Order XXXVII Rule 4 of the Code.
13.
For the reasons recorded above, I am not
inclined to accept the present appeal and to grant leave
or to set-aside the order assailed. This appeal fails. No
order as to costs.
(Sultan Tanvir Ahmad)
Judge
Announced in open Court on 05.11.2024.
Approved for reporting
Iqbal *
Judge
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