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

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.

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

18848689 (the „cheques‟).

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.

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.

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

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.

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.

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

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

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.”

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)

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

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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