1. This revision petition has been filed against the judgment and decree of District Judge Neelum dated 15.02.2007, whereby the appeal filed by the present petitioners against the judgment and decree of Senior Civil Judge Authmaqam was dismissed vide order dated 27.07.2002.
2. The precise facts of the instant revision petition are that Mulkiur-Rehman moved an application in the Court of Civil Judge Authmaqam on 10.12.1997 for cancellation of ex-parte decree dated 21.10.1997. It is stated in the application that another suit regarding the disputed land was subjudice before the Court and all the same two suits were consolidated on the basis of which the ex-parte decree is liable to be set-aside. It is averred that the applicant engaged a Counsel, but he did not appear before the Court on 26.05.1997, due to which, the ex-parte proceedings were initiated against the applicant. It is further submitted that the applicant is mentally disturbed and did not contact with his counsel and he thought that his counsel is pursuing the case. The applicant further submitted that he remained in different cities of Pakistan for treatment and for searching his son, therefore, he did not appear before the Court on 26.05.1997 due to firing of Indian Army and blockage of road. The applicant also submitted that in the absence of Counsel, the Court should have issue notice to the applicant for pursuing the case. Now, the applicant wants to pursue his case, therefore, the impugned judgment and decree may kindly be set-aside.
3. After hearing the parties, the learned Civil Judge Authmaqam dismissed the application vide its order dated 27.07.2002. Feeling aggrieved by the said order, the legal heirs of Mulki-ur-Rehman (deceased), Muhammad Siddique and others filed an appeal before the District Judge Muzaffarabad. As this case pertained to District Neelum, therefore, after creation of Neelum Valley as District, this case was transferred to District Judge Authmaqam by the District Judge Muzaffarabad vide its order dated 17.04.2004. The District Judge Authmaqam, after hearing the parties, dismissed the appeal filed by the present petitioners vide its order dated 15.02.2007, henee this revision petition.
4. Mr. Aftab Ahmed Awan Advocate learned counsel for petitioners argued that both the Courts below fell in error while passing the impugned judgments and decrees. The learned counsel submitted that the Courts below did not resolve the real controversy between the parties by giving telegraphic judgments. The learned counsel further argued that there are valuable rights of the petitioners and if the instant revision petition is not accepted then the petitioners will suffer an irreparable loss. It was further argued by the learned counsel that all the points/facts agitated in application were subject to proof. Hence the trial Court was legally bound to frame issues and ask the parties to adduce evidence, therefore, the impugned judgments/orders are nullity in the eyes of law, Lastly, the learned counsel prayed that this revision petition may be accepted and the impugned ex-parte judgment and decree may kindly be set-aside.
5. While controverting the arguments of the learned counsel for the petitioners, Syed Shahid Bahar Advocate learned counsel for respondents argued, that the judgments and decrees passed by the Courts below are based on sound and cogent reasoning, therefore, these do not require any interference by this Court. The learned Counsel also argued that these are concurrent findings of the Courts below and the controversy between the parties has been resolved in a legal fashion. It was further argued that the impugned judgment/decree of the trial Court is consent decree as well as ex-parte. It was added that the petitioners after joining the proceedings intentionally absented themselves and the trial Court has passed a proper and legally justified order under Article 164 of Limitation Act, therefore, this revision petition may be dismissed.
6. I have heard the learned counsel for the parties and gone through the record with my utmost care and caution.
7. The perusal of the record shows that the grounds taken in the revision petition that the lower Court has exceeded its powers while dismissing the application for setting aside the ex-parte decree is not tenable. The learned District Judge, has rightly observed, that the petitioners were in the knowledge of litigation between the parties, hence, the petitioners were under legal obligation to be vigilant to contest/prosecute their case. It is pertinent to note that the petitioners did not file any application for condonation of delay and a ground of sufficient cause is also not spelt out from the record of the case. The case in hand comes within the purview of Article 164 of the Limitation Act, which is reproduced hereunder:-- {{TABLE}} 1 2 3
164. By a defendant, for an order to set aside a decree passed ex parte.Thirty daysThe date of the decree or, where the summons was not duly served, when the applicant has knowledge of the decree. {{TABLE}} There is no quarrel with the proposition that the cases should be decided on merits instead of dismissing of cases on technical grounds, but the negligent prosecution of the case of the party is also not approved. The petitioners had to show sufficient cause for getting a favourable order merely filing an affidavit by the petitioners which is rebutted by the counter affidavit, cannot benefit the petitioners in any way. As it is apparent on the face of record that the petitioners were contesting the case through their counsel and later on absented themselves from the said proceedings. The application was beyond the limitation i,e, 30 days. The Mulki-ur-Rehman (deceased) petitioner moved the trial Court on 10.12.1997 to set-aside the impugned decree dated 21.10.1997, therefore, the said application was clearly time barred. It is also pertinent to mention that it is a case of concurrent findings of the Courts below, which warrants no interference by this Court.
8. The contents of the pleadings of the parties and the impugned decree/judgment, are evident, that the application is time barred, which has rightly been rejected by both the Courts below. Thus, framing of issues and recording of evidence by the trial Court was not necessary.
9. Thus, in view of what has been stated above, the instant revision petition stands dismissed with no order as to costs.