' Instant civil revision assailed judgments/orders dated 19-4-2005 and 14-6-2005 passed by learned Civil Judge and learned Additional District Judge, Faisalabad whereby petitioner's application under Order IX, rule 13, C.P.C. And its appeal were dismissed, respectively.
2. Succinctly, relevant facts are that the respondent filed a suit for recovery of Rs,13,64,279 with the averments that from 4-7-1994 to 12-7-1994 on different occasions, two thousand bales of cotton weighing 32080 kilograms worth Rs,14,61,740 were purchased by the respondent from the petitioner and according to the agreement between the parties, payment was to be made in advance. The respondent claimed to have paid the said amount to the petitioner till 14-7-1994 besides another amount of Rs,8,38,260 as advance for purchase of cotton. According to the plaint, the petitioner failed to supply the purchased cotton to the respondent of the value of Rs,8,38,260 and on their approach through Abdul Rashid their agent, the matter was lingered on fake pretexts. The respondent served a notice on the petitioner for payment of Rs,8,38,260 along with mark-up at the rate of 20% per annum. On refusal of the petitioner to pay the amount claimed, the suit was filed.
3. The petitioner being defendant in the suit contested the same by filing his -written statement wherein certain preliminary objections regarding the suit being time-barred and back up jurisdiction of Civil Court to adjudicate upon the matter, were raised. The learned Civil Judge who was seized of the suit, framed issues arising out of controversial pleadings of the parties and fixed the case for evidence but on this date, the petitioner failed to appear, resulting, ex parte proceedings against it on 26-9-2000. The learned Civil Judge, thereafter recorded ex parte evidence of the respondent and vide judgment/decree dated 4-5-2001 decreed the suit of the respondent for .An amount of Rs,8,38,260 with 14% mark-up per annum.
4. Respondent went in execution proceedings of the decree dated 4-5-2001 when the petitioner on 13-11-2001 filed an application apparently under Order IX, rule 13, C.P.C. Praying setting aside of ex parte proceedings dated 29-9-2000 and ex parte decree, dated 4-5-2001. The respondent contested this application by filing written reply but the same was dismissed by the learned Civil Judge through his order, dated 19-4-2005.
5. Petitioner aggrieved of order, dated 19-4-2005 dismissing its application under Order IX rule 13, C.P.C. Filed an appeal before the learned Additional District Judge but remained unsuccessful as the same was also dismissed on 11-6-2005. The petitioner has now filed instant revision petition for setting aside concurrent judgments/orders of the two Courts below.
6. Learned counsel for the petitioner submitted that the counsel appointed by the petitioner had undertaken responsibility of appearing in the suit who had been informing about further progress of the suit, off and on but abruptly absented himself from the proceedings without conveying to the petitioner. According to the learned counsel for the petitioner, fault if any, was that of his counsel, to which they have no contribution thus, the petitioner cannot be punished on account of no fault on its behalf. It was further argued that law favours decisions on merits of the case, ignoring technicalities. It was thus, prayed that by setting aside ex parte decree, case may be remitted back for its decision on merits.
7. I have minutely considered the arguments of the learned counsel for the petitioner and have examined the record, appended herewith. The petitioner after due service appeared before the trial Court through its representative on 16-12-1997 and produced authority letter in his favour. Trial Court marked presence of the representative of the petitioner and fixed the case for filing of written statement which was filed on 3-2-1998. Thereafter issues were framed in presence of the learned counsel for the parties and case was fixed for evidence. On 26-9-2000, nobody appeared on behalf of the defendant (petitioner) and ex parte proceedings were initiated against it. Record revealed that after ex parte proceedings on 26-9-2000, the suit was decreed ex parte after recording of evidence of the respondent on 4-5-2001, meaning thereby that it remained pending for about 8 months but nobody cared to inquire about the proceedings or ,fate of the suit. The petitioner only on 13-11-2001 filed a time-barred application for setting aside ex parte proceedings/decree being aware of pendency of the suit. 2nd proviso to rule 13 of Order IX, C.P.C.
Provided that no decree passed ex parte shall be set aside merely on the ground of any irregularity in service of summons if the Courts is satisfied that the defendant had knowledge of the date of hearing fixed in the suit. The petitioner in his application did not deny the knowledge of pendency of the suit or of the date fixed therein and instead, took the plea that his counsel absented abruptly without conveying any information to it but under law, on such flimsy grounds, ex parte proceedings/decree cannot be set aside/recalled. Matter regarding undertaking of the counsel to appear in the suit and non-conveying of his absence from the suit, is between the petitioner and the counsel whereto Court is not involved in any manner. Negligence of the counsel is neither sufficient cause nor the same is good ground for setting aside ex parte proceedings/decree and this controversy has been consistently settled through stare decisis. The petitioner may proceed to sue its counsel for damages occasioned on account of his lapse but for this reason, the prayer made in the application for setting aside ex parte decree, could not have been granted. Reference in this behalf can be made to the judgments in the cases of Haji Ahmad Hassan v. Dr. Mian Aziz Ahmad and 5 others 1979 CLC 629; Saee and others v. Zulfiqar Ali and others PLD 1992 Lah. 241 and Muhammad Munawar v. Ch. Khurshid Alam 1978 SCMR 266.
8. The petitioner being party to the suit was obliged under law to follow the suit diligently and his dependence on the counsel is not lawfully sufficient to absolve it from legal obligations cast on it.
One cannot close his eyes to visualize the situation that when the suit had been fixed in presence of the learned counsel for the petitioner for evidence, on the date nobody appeared on its behalf and in these circumstances, the Court was left with no other option except to proceed ex parte.
Sleeping over of its rights for long six months shows that absence of the petitioner or anybody else on its behalf was intentional/deliberate. Law provided 30 C days' time for filing application, like the one in hand but instead it was filed with an inordinate unexplained delay of six months, without any specific application for condonation, explaining sufficient reasons in support thereof. Law requires an indolent litigant to explain delay of each D day which could not have been done merely on the grounds that dispute should have been, decided on merits, ignoring the technicalities. Record revealed that evidence produced by the respondent justified the decree passed by the trial Court even ex parte.
9. For the reasons noted above, none of the Courts below committed any ylegality/irregularity amenable to revisional jurisdiction of this-Court hence this petition being devoid of any merit, is dismissed, in limine.