MUHAMMAD SAYEED AKHTAR, J.--- The facts giving rise to this petition are that the petitioner filed a suit for declaration and permanent injunction against the respondent which was decreed by the Civil Judge, Attock on 8.11.1990. The respondent Rehmat Ali filed an appeal before the learned District Judge, Attock. The said appeal was transferred to Rawalpindi and the same came-up for hearing before Sh. Muhammad Tareef, Additional District Judge, Rawalpindi. The said appeal was dismissed for non-prosecution on 4.12.1995. However, the same was restored on 21.5.1996 on the statement of the learned counsel for the petitioner subject to payment of Rs.500/- as costs.
Subsequently, the appeal was allowed vide judgment/decree dated 29.9.2000.
The petitioner filed an application under Section 12(2), CPC for setting aside the judgment dated 29.9.2000 passed by the learned Additional District Judge, Rawalpindi. The same was dismissed vide order dated 3.11.2001.
2. Learned counsel for the petitioner contended that the application of the petiti9oner was disposed of without framing any issue. Reliance was placed upon Abdul Razzaq v. Muhammad Islam and 3 others (1999 SCM R 1714). Conversely, the learned counsel for respondent relied on Mst.
Amina Bibi through General Attorney v. Nasrullah and others (2000 SCM R 296) to contend that it is not incumbent upon the Court in all circumstances to frame issues, record evidence and follow the procedure prescribed for the suit.
3. I have gone through the order of the learned Additional District Judge, Rawalpindi he has passed a very elaborate order after going through the entire record and the order sheet. The contention of learned counsel for the petitioner before the learned Additional District Judge was that he had not engaged a counsel and there was no notice for fixation of the appeal. The learned Additional District Judge after going through the order-sheet stated that the copy of the application for setting aside the order dismissing the appeal for non-presentation was given to the petitioner on 24.4.1996 when he appeared in. Person. On the next date of hearing i.e. 21.5.1996 on the statement of the learned counsel for the parties remained present and the record was summoned. On 15.11.1997 Agha Tariq Mehmood, Advocate submitted memo. Of appearance on behalf of the petitioner.
The memo. Of appearance and Wakalat Nama of the petitioner are available on the record.
Subsequently when the file was received before the learned lower Court on 14.9.1999 a notice was again issued to the petitioner and Raja Hafeez, Advocate appeared on behalf of the petitioner. On 29.9.2000 none-appeared on behalf of the petitioner and the appeal was decided. The above- stated facts clearly show that neither the petitioner nor his counsel appeared before the learned Additional District Judge when the appeal was decided against him. No fraud and misrepresentation has been pointed out. I agree with the learned counsel for respondent that in the particular circumstances of the case it was not incumbent on the Court to frame the issues and record the evidence.
4. For what has been discussed above this petition has no merit and is dismissed in limine.
Civil .