Ex parte proceeding dismissed Unilateral action rejected. The petitioners argued that they did not deliberately run away from the case after filing the counterclaim but faced unilateral action due to the negligence and misconduct of counsel, and the Lahore High Court set the limitation period at three years, not 30 days. W P No.69059 of 2024
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| Unilateral action rejected. The petitioners argued that they did not deliberately run away from the case after filing the counterclaim but faced unilateral action due to the negligence and misconduct of counsel, and the Lahore High Court set the limitation period at three years, not 30 days. W P No.69059 of 2024 |
نہیں، درخواست گزاروں کا یہ کہنا نہیں تھا کہ انہوں نے جواب دعویٰ کے بعد جان بوجھ کر کیس سے بھاگنے کی کوشش کی تھی۔ ان کا موقف تھا کہ:
1. جواب دعویٰ دائر کرنے کے بعد وہ کیس میں شریک رہے تھے اور اس کے بارے میں باخبر تھے۔
2. تاہم، ان میں سے کچھ درخواست گزار کم تعلیم یافتہ تھے اور ایک درخواست گزار (چوتھا) غیر ملکی تھا، جس کی وجہ سے وہ وکلا کی بدانتظامی یا غفلت کی بنا پر کارروائی سے بے خبر رہ گئے تھے۔
3. ان کا دعویٰ تھا کہ ان کے وکیل نے انہیں کیس کی پیشرفت سے آگاہ کرنے کا وعدہ کیا تھا، مگر وکیل کی طرف سے یہ وعدہ پورا نہیں کیا گیا، جس کے نتیجے میں انہیں ایکس پارٹٰے کارروائی کا سامنا کرنا پڑا۔
لہٰذا، ان کا موقف تھا کہ وہ جان بوجھ کر کیس سے بھاگے نہیں تھے، بلکہ انہیں غلط معلومات یا غفلت کی وجہ سے ایکس پارٹٰے کارروائی کا سامنا کرنا پڑا۔
ereo. H C J D A-38.
JUDGMENT SHEET
IN THE LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT
Writ Petition No.69059 of 2024
Muhammad Ashfaq & others
Versus
Civil Judge, Samundari & others
J U D G M E N T
Date of hearing: 13.11.2024.
Petitioners by:
Malik Muhammad Nadeem, Advocate.
Respondents by: Ch. Lehrasib Khan Gondal, Advocate (for
respondent No.3).
MUHAMMAD SAJID MEHMOOD SETHI, J.:- This
writ petition is directed against the order dated 22.07.2024 & judgment
dated 05.09.2024, passed by learned Civil Judge and Additional
District Judge, Samundri, respectively, whereby applications for
setting aside ex parte proceedings dated 22.11.2023, filed by
petitioners No.1 to 3 and petitioner No.4, respectively, were
concurrently dismissed.
2.
Brief facts of the case are that respondent No.3 filed suit for
recovery of damages amounting to Rs.20,000,000/- (Rupees Twenty
Million only) against the petitioners, which was contested by
petitioners No.1 to 3 and petitioner No.4 by filing their respective
written statements. Learned Trial Court framed issues. During the
course of proceedings, petitioners were proceeded against ex parte vide
order dated 22.11.2023. Petitioners No.1 to 3 and petitioner No.4
moved their respective applications for setting aside aforesaid ex parte
proceedings, which was contested by respondent No.3 by way of filing
written reply. After hearing respective arguments of learned counsel
for the parties, learned Trial Court proceeded to dismiss the aforesaid
applications vide order dated 22.07.2024. Feeling aggrieved,
Writ Petition No.69059 of 2024
petitioners filed revision petition, which was also dismissed vide
judgment dated 05.09.2024. Hence, instant petition.
3.
Learned counsel for petitioners submits that petitioners’
applications for setting aside ex parte proceedings have been
concurrently dismissed by learned Courts below with the observation
that said application is barred by time as the same was filed after 30-
days. He adds that limitation for filing such application is 03-years,
therefore, impugned decisions, being contrary to the applicable law,
are unsustainable. In support, he has relied upon Messrs Rehman
Weaving Factory (Regd.), Bahawalnagar v. Industrial Development
Bank of Pakistan (PLD 1981 Supreme Court 21) and Muhammad
Ramzan v. Malik Rehmat Ullah and others (2014 MLD 451).
4.
On the other hand, learned counsel for respondent No.3 defends
the impugned decisions.
5.
Arguments heard. Available record perused.
6.
Record shows that petitioners initially contested the suit filed by
respondent No.3 by filing their written statements, whereafter issues
were framed by learned Trial Court. However, during the course of
proceedings, petitioners were proceeded against ex parte vide order
dated 22.11.2023. It is the stance of petitioners that since petitioners
No.1 to 3 are barely educated who are not familiar with the legal
intricacies and petitioner No.4 is living abroad, represented through his
counsel, therefore, upon assurances of their counsel to keep them
informed about the proceedings of the suit, petitioners remained
unaware of the developments and were ultimately proceeded against ex
parte as a result of collusiveness of their counsel. Whereas, the
applications for setting aside ex parte proceedings were dismissed on
the ground of limitation as ex parte proceedings were initiated vide
order dated 22.11.2023 and applications for setting aside ex parte
proceedings were filed on 16.05.2024 and 10.06.2024.
7.
Needless to say that Article 163 of the Limitation Act, 1908
provides limitation of 30-days for a plaintiff to seek setting aside of
order of dismissal of suit for default, whereas Article 164 prescribes
Writ Petition No.69059 of 2024
limitation of 30-days for a defendant to seek setting aside of ex parte
decree. None of these Articles or any other specific Article cater the
situation qua limitation for filing application for setting aside ex
parte proceedings. In these circumstances, it would be governed by
the residuary Article 181 of the Act ibid, which provides a limitation
period of 03-years from the date the right to sue accrues. It is also
well settled that even if the defendants are proceeded ex parte, they
may join the proceedings at any subsequent stage and file an
appropriate application for setting aside ex parte order, provided
they show good cause. A person nevertheless declared ex parte,
remains as party to the proceedings and may even cross-examine the
witnesses. If good cause is shown to the satisfaction of the Court
justifying their previous absenteeism, the ex parte proceedings may
be set aside by the Court and the defendant may then be restored to
the position he held before being proceeded against ex parte. This
rule invests the Court with the wide-ranging potential discretion to
allow the application if the defendant who was declared ex parte
assigns good cause for previous absence. Even otherwise, in the
absence of any clear provisions in the Code of Civil Procedure
prohibiting the appearance and participating in the proceedings by the
defendant, proceeded ex parte, there can be no legal bar to allow him
to defend his rights. It is the right of every defendant and also a
principle of natural justice, to be given a chance of hearing before any
order is passed against his interest. Reliance is placed upon Police
Department through Deputy Inspector-General of Police and another
v. Javid Israr and 7 others (1992 SCMR 1009) and Muhammad
Yousuf Bhindi and others v. Messrs A.G.E. & Sons (Pvt.) Ltd. and
others (PLD 2024 Supreme Court 864).
8.
Admittedly, the suit is still pending before learned Trial Court
and valuable rights of the petitioners are said to be involved in the
subject litigation, therefore, in such a situation, it would be
unjustified to dislodge them from the active contest on the basis of
technicalities. Reliance is placed upon the case of Messrs Rehman
Writ Petition No.69059 of 2024
Weaving Factory supra and Rana Karamat v. Farhan Haider and 6
others (2024 CLC 563).
9.
Resultantly, instant petition is allowed and impugned order
dated 22.07.2024 & judgment dated 05.09.2024, passed by learned
Civil Judge and Additional District Judge, Samundri, respectively, are
declared to be illegal and without lawful authority. Consequently, the
applications for setting aside ex parte proceedings, filed by petitioners,
are allowed and order for initiating ex parte proceedings dated
22.11.2023, is set aside.
(Muhammad Sajid Mehmood Sethi)
Judge
APPROVED FOR REPORTING
Judge
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