MUHAMMAD MUZAMMAL KHAN, J. --- Instant civil revision assailed judgment/order dated 31.1.2002 passed by the learned Additional District Judge, Gujrat, whereby application of respondents Nos. 1 and 2 under Order XLI, Rule 21, read with Section 151 and Order XLVII, Rules 1 and 2, C.P.C. Was accepted and petitioner's appeal was directed to be re-heard.
2. Succinctly, relevant facts are that respondents Nos. 1 and 2 filed a suit for possession through pre-emption on 31.7.1963, which after due contest by the petitioner, was decreed by the learned Civil Judge vide his judgment/decree dated 1.12.2000. Petitioner felt aggrieved of the judgment/decree passed by the Trial Court and consequently filed an appeal before the learned Additional. District Judge, Gujrat. Respondents Nos. 1 and 2 were duly served in the appeal and had been appearing before the Appellate Court but they absented on 20.9.2001 and the Appellate Court. After calling the case three times, proceeded against them ex parte and at the same time, heard the appeal of the petitioner ex parte. Appellate Court accepted the appeal of the petitioner, set aside the judgment/decree of the Trial Court dated 1.12.2000 and dismissed respondents' suit for possession through preemption vide judgment/decree dated 20.9.2001.
3. Respondents Nos. 1 and 2 on 12.10.2001 moved an application under Order XLI, Rule 21, read with Section 151 and Order XLVII, Rules 1 and 2, C.P.C. Before the Appellate Court for re-hearing of appeal/recall of ex parte judgment on the grounds that respondent No. 1 was a government employee and could not manage leave of his superiors to attend the Court and respondent No. 2 on account of his illness remained absent on the date when the appeal was taken up for hearing and similarly their counsel on account of strike/boycott of the lawyers community, did not appear on their behalf and according to them absence of all of them was beyond their control besides being sufficient cause for re-hearing of appeal/recall of ex parte judgment. Application of respondents Nos. 1 and 2 was supported by a detailed affidavit of respondent No. 1 and was hardly contested by the petitioner, which was accepted by the learned Additional District Judge cognizant of the matter, after hearing the parties, vide order dated 31.1.2002, impugned by the petitioner in the revision petition in hand.
4. I have heard the learned counsel for the parties and have examined the record, appended herewith. Submissions of the learned counsel for the petitioner that respondents knew the date of hearing but they filed their - application with a delay of 22 days by concocting unsupported reasons for their absence; that they could not substantiate those pleas; and that the learned Additional District Judge out of sketch/unreasoned order erroneously accepted application of the respondents, have not impressed me for multiple reasons to intervene in the revisional jurisdiction of this Court. In the first place, respondents had moved a simple application for re-hearing of the appeal, which was decided .Ex parte on 20.9.2001 and gist of this application is also to the same effect. Order XLI, Rule 21, C.P.C. Deals with re-hearing of appeals decided ex parte, which reads as under:--- "21. Re-hearing on application of respondent against whom ex parte decree made. ---(1) Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal; and, if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on, for hearing, the Court shall re-hear the appeal on such terms as, to costs or otherwise as it thinks fit to impose upon him.
(2) The provisions of the Limitation. Act, 1908 (IX of 1908) shall apply to application under sub-rule (1)].
Under this provision of law, respondent in whose absence appeal was decided ex parte had to explain his non-service or sufficient reasons which prevented him from appearing when the appeal was called on for hearing. Now C.L.R. respondents Nos. 1 and 2 in their application had duly. Explained reasons, which prevented them from appearing before the Court of appeal and those on account of which their counsel did not appear on their behalf which according to my mind, were sufficient cause as required by the provision of law above reproduced. In the second place, respondents' application was supported through a detailed affidavit of respondent No. 1 specifically sworning regarding absence of each of them including their counsel but petitioner while replying this application did not file any counter- affidavit. Under law, in absence of any counter-affidavit, facts sworn on affidavit by the respondents had to be accepted. Reference in this behalf can be made to-the judgments in the cases of Municipal Corporation, Sialkot v. Muhammad Shafi (1990 ALD 235) and Ghulam. Mustafa Shah v. Haji through Legal Heirs and others (1993 SCM R 256). In the third place, respondents' suit for possession through pre-emption stood decreed by the Trial Court vide judgment/decree dated 1.12.2000 and they had already deposited pre-emption money but the decree could not be executed on account of filing of appeal by the petitioner. It was not denied during hearing of this petition that possession of the land remained with the petitioner and respondent were out of possession. In this manner, there was no occasion for the respondents to desert contest of appeal filed by the petitioner and this facts lends support to the grounds urged by them in their application. On the fourth step, petitioner is enjoying usufruct of the suit land and no prejudice has been caused to him by acceptance of respondents" application because his appeal will he re- decided after hearing both the parties. In case petitioner really has a case to succeed, he can again earn acceptance of his appeal. Last but not the least reason for noninterference on instant petitioner that though impugned order is not well worded and did not compass around the entire controversy yet the net result given through it, is absolutely just/fair which cannot be termed arbitrary/fanciful on the basis of any canon of law known for administration of justice. I have no doubt in my place that in accepting respondents' application, Appellate Court did not commit any illegality/irregularity in terms of Section 115, C.P.C.
5. For the reasons noted above, no case for interference in revisional jurisdiction of this Court, was made out and consequently instant petition, being devoid of any merit, is dismissed with no order as to costs. .