1. SAJJAD AHMAD, J.-This petition for Special leave to appeal arises out of an application made by the petitioners under section 7 of the West Pakistan Waqf Properties Ordinance XXI of 1959, before the District Judge, Lahore, for a declaration that the property in dispute known as "Takia Sain Bulaqi Shah" situated at No. 1, Qutab Road, Lahore, belonged to them and that the Notification No. 3 (179)- Auqaf-60 dated the 29th of August 1960, whereby its administration, control and management was assumed by the respondent, the Chief Administrator of Auqaf, West Pakistan, was without lawful authority. The defendant, the Chief Administrator of Auqaf, contested the application, pleading that the property was waqf property and further that it had been declared as such by an earlier judgment dated the 10th of May 1959, in a former suit under section 92 of the Code of the Civil Procedure. The District Judge framed an issue whether the property in suit was not a waqf property.
2. The petitioners led their evidence and examined six witnesses on the 14th of April 1962, in the absence of the defendant --respondent and the case was then adjourned to the 23rd of June 1962.
3. On this date again, the defendant respondent was not represented and the matter was adjourned to the 29th of September 1962. On this date the defendant again defaulted in appearance and was proceeded against ex parte. The petitioner examined five more witnesses and closed his evidence.
4. On the next date of the hearing, i.e., the 20th of October 1962, the respondent made an application for setting aside the ex parte order which was partly allowed for the cross-examination of petitioner Muhammad Aslam who had been examined as P. W. 5 in the case. Thereafter, the petitioners were allowed to examine some more evidence in the changed circumstances and finally on the 19th of March 1963, the case was adjourned to the 14th of May 1963, for the remaining evidence of the petitioners as also of the respondent. The respondent's counsel was directed to put in his list of witnesses together with talbana. But this order was not complied with and it was directed that the respondent shall be permitted to produce his witnesses on his own responsibility on the next date of hearing which was fixed for the 28th of May 1963. No one appeared for the respondent on this date and the District Judge passed an order closing the respondent's case under Order XVII, rule 3, of the Civil Procedure Code. Thereafter, arguments of the parties were heard and the judgment was announced on 25th of June 1963, by which the petitioners' application was accepted and the property in dispute was declared to be non-waqf for purposes of Ordinance XXI of 1959. The Chief Administrator of Auqaf preferred an appeal to the High Court which was accepted by a learned Single Judge who held that the respondent was the victim of circumstances in not producing his evidence, oral and documentary, and therefore proper material could not be placed before the Court to arrive at a correct decision. It was further observed that: "The orders passed from time to time no doubt indicate that the appellant (respondent before us) has been negligent but as law leans towards disposal of cases on merits, I hold that further opportunity should have been granted to the appellant to produce his evidence, both oral and documentary, on payment of additional costs, because costs have been considered to be panacea for all sores in litigation ...."
5. Rs. 1,000 was fixed as costs and the case was remanded for a fresh decision.
6. The petitioners challenged this decision of the learned Single Judge in an appeal before a Letters Patent Bench of the High Court which has been dismissed on the view that interference with the order of the learned Single Judge was not justified in the circumstances of the case as he felt rightly persuaded to reopen the case for a correct decision on merits and that the default committed by the respondent had been sufficiently penalized by the award of costs against him to the petitioners in the sum of Rs. 1,000.
7. We feel that the view taken by the High Court in the matter in the exercise of its discretion, does not merit interference on our part. The petition is dismissed.