1. Briefly, in claim No. 232-DCC-2008 titled Muhammad Umar versus M/S Niazi Flying Coach etc the petitioners/defendants (herein after to be called as petitioners including two others were directed to pay an amount of Rs. 131000/- as value of the respondent's lost mobiles phones and legal expenses which cell phones were misplaced/lost during his travel from Lahore to Faisalabad in petitioner's bus No. 1494 vide order dated 16.02.2009. The petitioners and the two other defendants, in the said claim, were directed to pay the above said decreetal amount to the respondent/decree holder within a period of thirty days. Any how, as the petitioners did not pay the above said decreetal to the respondent within the prescribed period, therefore, the respondents has submitted execution application in this court for recovery of the same on 18.03.2009.
2. On 13.05.2009, the petitioners have submitted the petition in hand for setting aside ex-parte order dated 16.02.2009, on the grounds that they have not been served notice through process server or by any other mode, that as they have been condemned unheard, they may be provided opportunity of hearing as there are several legal defects in the claim and the respondent claimant is not entitled for grant of decree as prayed.
3. The respondent has vehemently apposed the said petition by filing his written reply.
4. Heard the arguments. Record perused.
5. The careful perusal of the order sheet in the claim transpired that after registration of the claim under diary No. 232 on 10.06.2008, the petitioners were summoned to appear in person on subsequent dates i.e 17.06.2008, 24.06.2008, 30.06.2008, 04.07.2008. It is worth mentioning here that the petitioners were issued summons through the messenger as well as by registered cover envelops. On 12.06.2008, the petitioner/Manager Niazi Flying Coach was served through his clerk Akmal. The receipts of the postal resistered envelops have been annexed at page No. 57 of the claim file. Under such circumstances, as my learned predecessor in office made satisfaction that the petitioners/defendant No. 1,2 and 4 , were not appearing in the court advertently, hence, as the defendant's No.3(driver and the conductor of the coach NO. 1494 of Niazi Flying Coach) had already made their appearance in the claim, the petitioner were proceeded against exparte on 04.07.2008. Thereafter, the defendant No. 3 submitted their written statement contesting the claim, both the parties in attendance produced their evidence in the claim in support of their respective versions and after hearing them at length, the impugned order dated 16.02.2009, was pronounced by the court after taking into consideration all the pros and cons of the case.
From the above said scenario, I have carefully elicited following points with clarity; a. The petitioners have properly been served through the messenger as well as by post therefore, the plea for inadvertent non appearance is lame excuse; b. The appearance of the driver and conductor of the bus, being the servants of the petitioners, shows that their masters, the petitioners were well aware about the lodging of the claim against them but they did not take pains to appear to contest the claim advertantly; c. The servants of the petitioners i.e the driver and the conductor of the bus have fully contested the claim and produced all available evidence in support of their version which has been discussed in detail therefore, it is presumed that no fresh ground is available to the petitioners as their servants have exhausted all the points of contest; d. The claim was accepted on 16.02.2009, but the petitioners have submitted the petition in hand after lapse of a period of about three months when the respondent submitted execution petition against them and coercive measures were being adopted against the petitioners for procuring their attendance in this court for the purpose of recovery decreetal amount from them, which shows the petitioner's malafide; e. Although the application under section 5 of the Limitation Act, for condonation of delay, has been submitted but it is not maintainable for the reason that in view of my observations supra, the petitioners were well aware about the institution of the claim in this court.
7. Apart from above whole discussion, there is no provision in the PCPA 2005, for setting aside the ex-parte final order. Therefore, this forum shall not be justified in recalling its ex-parte order under the above said circumstance as the ex-parte order is not without notice of the petitioners;
8. The upshot of the above whole discussion is that the petition inhand merits dismissal and is hereby dismissed. File be consigned to the record room after its due completions. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.