1. ' Dr. QAMARUDDIN BOHRA, J.---Heard Mr. Naveed-ul-Haq Advocate for the plaintiff and Mr. Abdul Karim Siddiqui, Advocate for the defendant No. 1.
2. ' The learned counsel for the defendant No.1 in respect of his application under section 5 of the Limitation Act read with section 151, C.P.C. And application under Order IX Rule 13, C.P.C. Read with section 151 of the C.P.C., argued that this Court may be pleased in the interest of justice to condone the delay of period occurred in the above suit of non-appearance of the defendant No.1 from 11-9- 2004 till filing of this application.
3. ' The learned counsel further argued that this Court was pleased to pass ex parte judgment and decree, dated 10-1-2007 against the defendant No.1 for his non-appearance in this suit. He further contended that non-appearance of defendant No.1 in the suit was not wilful or deliberate but it is due to unavoidable reason beyond the control of the defendant No.1 on account of his disability of his serious psychiatric illness and referred medical certificate attached with it "annexure-A" and he lastly contended that the plaintiff has not filed any counter-affidavit/ objections on the application of the defendant, therefore, his applications may kindly be allowed and ex parte judgment and decree may be set aside and the defendant No.1 be allowed to contest the suit.
4. ' On the other hand the learned counsel for the plaintiff argued that it is not necessary that the counter-affidavit/objections are to be filed on the applications. He can straightaway argue the same, as such he contended that no ex parte judgment was passed on 10-1-2007 as defendant No.1 was served and on his behalf the Advocate filed power and appeared but subsequently the Advocate withdrew the power. The notices were issued to the defendant No.1 but he did not turn up and the suit was ultimately decreed on 10-1-2007. He further contended that admittedly the defendant No. 1 remained absent and did not participate in the proceedings since 11-9-2004 and now on 27-3-2007 he has come for condonation of delay without any plausible ground. He further contended that the medical certificate issued by some private doctor simply mentioning suffering psychiatric (Schizophrenia). This certificate is not helpful to the defendant as it does not speak that the defendant was not able to move or to take journey or pursue the proceedings of this case specially when he had an Advocate in this case. He lastly contended that the defendant (present applicant) despite service did not file any written statement nor come forward to contest the suit and the suit was rightly decreed by this Court and he prayed for the dismissal of both the applications of the defendant.
5. ' The perusal of record shows that the present suit was filed by Messrs Brooke Bond Pakistan Ltd.
6. Against the defendant No.1 Muhammad Shafiq son of Muhammad Bashir (present applicant) and one Muhammad Hassan son of Shazada. On 1-6-1994 suit was admitted and registered and after admission and registration of suit the summons were issued to both the above defendants, who were residing in Surgodha and On 26-9-1994 the defendant No.2 was present in person and sought time for filing the written statement, which was granted to him, hence summons were repeated to the defendant No.1, through District Judge Sargodha. On 14-12-1994 report received that the defendant No.1 (present applicant) served through District Judge Sargodha and on behalf of defendants Nos.1 and 2 Syed Muhammad Ali Advocate filed power then the case was adjourned for filing the written statement on behalf of both the defendants from time to time and in the meantime different applications were moved on behalf of the defendant No. 1 . However, the written statement filed on behalf of defendant No.2 on 4-4-1995 but no written statement is filed on behalf of defendant No.1 and time was sought for filing the written statement but the same was not filed and ultimately vide order, dated 13-11-1998 the application under section 148, C.P.C. Was dismissed and the defendant No.1 was debarred from filing the written statement and then on 14-9-1998 the issues were settled.
7. ' The record further shows that when the counsel for the defendant No.1 was discharged to appear on behalf of defendant No.1 (present application) then registered post notice as well as through courier were issued to the defendant No.1, which was served on him and one Messrs Raja Ghulam Murtaza and Ch. Saeed-uz-Zaman Advocates filed Vakalatanama on behalf of defendant No.1 on 26-4-2005 but thereafter the above counsel had also remained absent. Thereafter, the evidence of plaintiff was recorded, which was cross-examined on behalf of defendant No.2 before recording the evidence of plaintiff the notice was issued to the defendant No.1 (present applicant) despite of that he chooses to remain absent. Then the plaintiff's witness was examined thereafter defendant No.2 and his Witness was examined. Thereafter, this Court heard the arguments of plaintiff's counsel and counsel for the defendant No.2 Mr. Riazuddin Advocate on 10-1-2007 and decided all the issues and the suit was decreed against the defendant No.1 in the sum of Rs.39,40,806.70 with interest/mark-up at the rate of 10% from the date of filing of the suit till realization with cost and dismissed the suit against the defendant No.2.
8. In light of the above it is very much clear that the defendant No.1 who deliberately remained absent from the Court did not contact his counsel who were appearing for about 10 years in the case did not. File any written statement and after discharging of the power of his counsel then again fresh notice was served on the defendant (present applicant) then two counsel filed Vakalatnama but they did not appear, as such the suit was rightly decided vide judgment,. Dated 10-1-2007 and that judgment and decree cannot be said as ex parte. The defendant No.1, who has not produced any evidence whereby his long absence can be condoned.
9. ' It is settled law that under section 5 of Limited Act, each and every day delay is to be explained.
10. ' In light of the above discussion this Court does not find any merit in the Applications bearing No.2473 of 2007 as well is C.M.A. No.2474 of 2007 and both applications are disposed of as stand dismissed.