C . M . NO.433-C OF 2003 ' MUHAMMAD MUZAMMAL KHAN, J.---Through this petition ex parte proceeding/order dated 25-4- 2003 passed by this Court in civil revision is sought to be set aside by the respondents in the main revision petition. A notice to the revision petitioner was issued who is represented through his counsel.
2. Briefly, Civil Revision No,306-D of 1996 on 25-4-2003 came up for hearing before my learned brother Mr. Jawwad S. Khawaja, J., for which day the respondent (Market Committee) was served but nobody appeared on its behalf and, therefore, it was proceeded against ex parte. After hearing the learned counsel for the revision petitioner, appellate judgment dated 8-7-1996 was set aside and decree of the trial Court dated 21-2-1994, was restored whereby, suit of Messrs Yasrab Traders had been decreed declaring that it was not a purchaser of wheat and was, therefore, not liable to pay any amount by market fee and in this manner the revision petition was accepted.
3. The learned counsel for the petitioner submits that notice issued by the office by this Court was received by the Market Committee, initiating date of hearing as 25-11-2003 whereupon Secretary Market Committee Sialkot (Muhammad Javed) was deputed to pursue the civil revision, but on 25- 4-2003, date fixed in the revision petition reached the premises of this Court at about 8-30 a.m. He further submits that notice issued by the office did not mention the name of the Honourable Judge, thus he had been running from pillar to post for tracing, the Court where revision petition in hand was fixed. He referred to narration in para.3 of his petition wherein, it is mentioned that Secretary Market Committee reached the court-room but the impugned order had already been passed.
Learned counsel further elaborates his contention by saying that the petitioner has made out a case for re-calling of ex parte proceedings and thus prayed that his petition may be accepted.
4. Learned counsel appearing on behalf of the respondent urged that the application in hand does not make out a sufficient cause for setting aside the ex parte judgment passed by this Court. He further submits that conduct of the petitioner had been negligent because their service was effected before the date fixed in the revision petition and thus they should have taken appropriate steps for their appearance earlier, instead of waiting for the day when the revision petition itself was fixed. He further argues that court time is 8-00 a.m., whereas the petitioner as it is mentioned in para.3 that its Secretary reached the High Court at about 8-30 a.m. Which clearly shows their negligent conduct.
5. The learned counsel claims that averment in the para.3 of application are absolutely false and that had these assertions been true, it must have mentioned the time by which its employee reached to the court-room where the case was fixed but they have not mentioned so in the application.
6. I have considered the arguments of the learned counsel for the parties minutely. 'Civil revision on 25-4-2003, after proceeding ex parte against the petitioner, was accepted on merits, thus application in hand, as it stands is not maintainable. On Court's query the learned counsel for the petitioner could not satisfy how this petition is maintainable, under the law. I have shown my inclination to treat this petition, the one under Order XLI, rule 22 of C.P.C., if the petitioner fulfils the prerequisite of that provision of law. The learned counsel for the petitioner has repeated his submissions and said that the petitioner makes out a good cause, explaining non-appearance of the petitioner or anybody else on its behalf. The petitioner (Market Committee)was undeniably served much before the date on which they were preceded against ex parte. After service it was required to prove that it was prevented by a course beyond control before the Court when the case was called for hearing, by any sufficient cause. The petitioner having been served much before, from the date of hearing, had time for inquiry from the office of this Court regarding the Court, where this case was to be fixed but no step, in this behalf, was taken which shows its indolence attitude. Petitioner's Secretary reached at 8-30 a.m. Whereafter he started running from pillar to post but in the meanwhile this case had been decided ex parte on merits. Neither time of visit of the Secretary to the office nor to the Court is mentioned in the application and if at all contents of the application are accepted, there is no explanation as to why the application in hand was not filed on the same day when the Secretary had already reached this Court. Application in hand was filed within limitation but after 11 days, this time also, with the signatures, of the Secretary, shows that Secretary had not come on 25-4-2003 when the revision petition was decided.
7. Petitioner imposed market fee on the purchase of wheat but did not produce any evidence during the trial of the suit before the trial Court showing that the respondent was not a Miller and was simply a purchaser of wheat for its onwards sale. In this manner I have examined the merits of the case, as well, the petitioner has no chance of success even if its this petition is accepted and civil revision is reheard.
8. For what has been discussed above I find that this petition has no merit in it and is dismissed with no order as to costs.