The brief facts out of which the present appeal arises are that the respondent/plaintiff filed a suit for recovery of Rs. 3,60,000/- in the Court of Addl. District Judge, Faisalabad, against the appellant/defendant on the ground that Cheque No. A-2657826, dated 3.6.2003, issued in the name of the respondent/plaintiff by the appellant/defendant was dishonoured. The appellant filed an application for leave to appear and defend the suit before the Trial Court on 31.1.2004. Case was transferred from the Court of Mr. Jawad-ul-Hassan, Addl. District Judge, to Mr. Sajjad Hussain Sindar, Addl. District Judge, Faisalabad on 26.4.2004. The transferee Court sent notice to the appellant on 26.4.2004 for 13.5.2004. The appellant filed an application for adjournment through Ch. Abdul Salam, Advocate on 13.5.2004 and the case was adjourned for 20.5.2004. The appellant did not appear before the Trial Court. The case was called on 20.5.2004 repeatedly and finally the ex parte order was passed against the appellant and the case was adjourned for ex parte evidence of respondent for 31.5.2004. Ex parte evidence of the respondent/plaintiff P.W.1 Riaz Ahmad, P.W.2 Nasir, Mehmood, P.W.4 Zulfiqar Ali was recorded on 31.5.2004 and the case as adjourned for 8.6.2004. The appellant filed an application for setting aside ex parte proceedings on 8.6.2004 through Ch. Abdul Salam, Advocate. The -application was dismissed vide separate order dated 18.6.2004 and the impugned judgment and decree was passed by the Trial Court vide separate judgment and decree on 18.6.2004, hence, the present appeal.
2. The learned counsel of the appellant submits that the appellant has not engaged Ch. Abdul Salam, Advocate, who has filed application before the Trial Court for adjournment of the case, therefore, the basic order is Without lawful authority, therefore, super-structure shall have to fall on the ground. He further submits that Trial Court has decreed the suit amounting to Rs. 3,60,000/- with costs without any justification through ex parte decree.
3. The learned counsel of the respondent submits that the appellant submitted application for adjournment through Ch. Abdul Salam, Advocate and the case was adjourned on 13.5.2004 for 20.5.2004 and finally- after repeated calls, the Trial Court passed the ex parte order against the appellant on 20.5.2004. Subsequently, the appellant filed application for setting aside the order dated 20.5.2004 through Ch. Abdul Salam, Advocate on 8.6.2004. The contents of the application did not contain any word that appellant has not engaged Ch. Abdul Salam, Advocate and he has filed application for adjournment without instructions of the appellant. He further submits that appellant has not filed appeal against the order dated 20.5.2004 and order passed by the Trial Court on 18.6.2004 wherein the application for setting aside the ex parte; order was dismissed by a separate order whereas the Trial Court has passed the impugned judgment and decree by a separate judgment and decree dated 18.6.2004. He further urges that appellant has not taken any ground in application for leave to defend by raising by question of law or parameters prescribed by the Legislature in its wisdom in Order 37, C.P.C.
4. We have given our anxious consideration to contentions of the learned counsel of the parties and perused the record.
5. It is better and appropriate to reproduce the relevant paragraph of application for setting aside ex parte proceedings, interim orders of the Trial Court dated 13.5.2004 and 20.5.2004 and ex parte order to resolve the controversy arising between the parties in this appeal. {{URDU TEXT}} Mere reading the aforesaid orders and paragraph, it is crystal clear that the appellant through Ch. Abdul Salam, Advocate filed an application for adjournment, which was granted and the case was adjourned from 13.5.2004 to 20.5.2004. The appellant filed application for setting aside ex parte order before the Trial Court wherein the content of the application did not mention a single word that the appellant has not engaged Ch. Abdul Salam, Advocate, who has filed application for adjournment without instructions of the appellant, this fact is also not in consonance with the previous orders and in fact this application was filed by the appellant through the said Advocate.
This fact brings the case in the area that the appellant did not appear before the Trial Court on the said date himself as well as his counsel, therefore, appellant failed to furnish sufficient ground for setting aside the ex parte order dated 20.5.2004. It is pertinent to mention here that the service of the appellant was effected by the Trial Court through the Naib Nazar Tameel, Tandalianwala as is evident from the order dated 20.6.2004. The appellant has also filed application for leave to appear and defend before the Trial Court on 31.1.2004 but in fact the contents of the application for setting aside the ex parte order show that the appellant has come to know about the said suit through his nearest relations as is evident from para 2 of the application reproduced above. This fact also supports the impugned order dated 18.6.2004 passed by the Trial Court, dismissing the application for setting aside the ex parte order filed by the appellant. It is settled principle of law that it is the duty and obligation of the parties to be vigilant for their rights but the appellant himself is not vigilant, therefore, appellant is not entitled to get the benefit of his own misdeeds and negligence.
Coupled with the fact that the leave was not granted to the appellant, therefore, the impugned judgment and decree is in accordance with the provisions of law laid down by the Honourable Supreme Court in M/s. Ahmad Autos vs. Allied Bank (PLD 1990 S.C. 497). It is settled principle of law that proceedings initiated under Order 37, C.P.C. Which contains entire mechanism and procedure which has to be looked within the four-corners of Order 37, C.P.C. The appellant failed to bring on record special circumstances for setting aside the ex parte order and consequently application for setting aside was dismissed by the Trial Court on the basis of which the impugned ex parte judgment and decree has been passed by the Trial Court.
In view of what has been discussed above, this appeal has no merits and we do not find any infirmity or illegality in the impugned judgment and decree of the Trial Court, therefore, appeal is dismissed with no order as to Costs.
R.F.A. Dismissed. '