IJAZ AHMED, J. --- The petitioner, respondents Nos.4 to 6 and Malik Abdul Rauf, the brothers and Mst. Maqsoodan lqbal respondent No. 3 and Mst. Rasheeda Razi and Mehmooda Kakaus, the sisters are the legal heirs of Malik Muhammad lqbal. The said predecessor of the parties died in the year 1995 and left behind the agriculture and urban properties. Respondent No. 3 and two other sisters instituted a suit for permanent injunction, administration and partition of the property and for rendition of accounts. It was averred that after the death of their father, the property was occupied and was cultivated and administered by the defendant brothers. They had been paying the plaintiff an unascertained share of the due. When asked to partition the property and to rend the accounts, the defendants refused, that obliged the institution of the suit. All the defendants except the petitioner filed the conceding statement and acceded to the prayer made by the plaintiffs. The petitioner was proceeded against ex parte on 23.9.2006. The petitioner made an application on 7.10.2008 for setting aside the said order. The application was accepted vide order dated 13.10.2008. The petitioner was awarded an opportunity to defend the suit subject to payment of cost Rs. 2000/-. The case was adjourned to 21.10.2008. On the adjourned date, the petitioner failed to pay the cost. The case was adjourned to 24.10.2008. Even on the said adjourned date the cost was not paid. The order dated 13.10.2008 was reviewed. The ex parte proceedings were held be in continuation. An ex parte preliminary decree dated 8.11.2008 was passed in favour of respondent No. 3 and the co-plaintiffs. The petitioner preferred an appeal before the learned District Judge against the order dated 24.10.2008. The same was withdrawn on 26.11.2008 on account of pecuniary jurisdiction that the learned District Judge lacks. Through the instant revision petition. The petitioner impugns the orders dated 23.9.2006 and 24.10.2008 passed by the learned Trial Court.
2. It is contended by the learned counsel for the petitioner that valuable rights of the petitioner are involved in this case; that a wrong address of the petitioner was mentioned in the plaint and the plaintiffs manoeuvred the non-service of the petitioner; that the causes should be decided on merits and should not be defeated on mere technicalities; that the petitioner should have been awarded another opportunity for payment of the cost that he has been refused; and that the orders passed by the learned Civil Judge are mechanical in nature so are not maintainable in law.
3. On the other hand, the learned counsel for respondent No. 3 has contended that the argument of wrong mentioning of the address of the petitioner loses its weight as the order for ex parte proceedings was set aside vide order dated 13.10.2008 and he was afforded an opportunity for defending the case; that in fact the petitioner failed to pay the cost of Rs. 2000/- that was a condition for setting aside the ex parte proceedings and his conduct had made it impossible for the Court to proceed with the case; that even if the orders dated 23.9.2006 and 24.10.2008 are set aside, the decree dated 8.11.2008 still holds the field, which has not been challenged by the petitioner; and that besides the petitioner, Malik Abdul Rauf another brother of the petitioner and was arrayed as one of the defendants and besides respondent No. 3, two other sisters had also instituted the suit, have not been impleaded in the instant revision petition, therefore, the same is incompetent.
4. I have heard the learned counsel for the parties and gone though the copies of the record annexed to the petition.
5. The justifiability or otherwise for proceeding ex parte against the petitioner loses its import as the order dated 23.9.2006 was set aside by the learned Trial Court on 13.10.2008 and the petitioner was afforded an opportunity to defend the suit. The order was however conditioned with payment of Rs.
2000/- as cost. He failed to pay the same on two dates and disentitled himself for the relief granted to him vide order dated 13.10.2008 that resulted in recalling of the last mentioned order and revival of the order dated 23.9.2006. The petitioner although has challenged the said order yet has not challenged the decree which still holds the field. Even if the impugned orders are set aside, the decree passed against him, will stay put. The conduct of the petitioner post the order dated 13.10.2003 had made it impossible for the Court to proceed with the case and so, the Court had no option except to pass the impugned order. Even otherwise, the law supports the vigilant not the indolent. I do not see any illegality or irregularity in the orders passed by the learned Trial Court.
6. The instant revision petition, therefore, fails. Civil revision .