1. ' Through the instant revision petition under Section 115 Civil Procedure Code of 1908 petitioners have challenged the Exparte judgment & decree of Civil Judge/Illaqa Qazi-VI Swat dated 19/06/2010 in favour of the plaintiff and the application for setting aside above said exparte decree filed by the petitioners/defendant was dismissed vide order dated 08.9.2011 and the same was maintained by learned Additional District Judge/IZQ Swat while dismissing the appeal filed by the appellants/defendant present petitioners vide Judgment dated 18-05-2012 impugned herein.
2. 2.Brief facts of the case are that plaintiff/respondent Haji Dilber instituted a suit for declaration, permanent injunction and for cancellation of deeds whatsoever etc against the defendants/ petitioners to the effect that he along with predecessor in interest of Defendants No, 39 to 58 had purchased shares in compartment No, 8 to 15 situated at Toorwal Forest Block, Behrain Forest Range situated at Mouza Kedam on the basis of Deed No, 440 to 442 dated 07.07.1987 and agreement Deed No, 141 dated 06.02.1991 from Defendants No, 10 to 38 through the said documents.
3. Plaintiff has claimed that he is entitled to receive half amount while other half is the entitlement of predecessor in interest of Defendants No, 39 to 58 of royalty worth 4 rupees one Ana and 1-1/2 pie defter in the said compartments on the basis of the above mentioned documents, the details of which are mentioned in the heading of the plaint and prayed for decree in his favour.
4. 3.The learned Civil Judge-VI Swat summoned the defendants for so many times but neither the defendants/respondents nor any person on their behalf turned up and learned trial Court proceeded against them exparte vide order dated 23-11-2009 and 30-03-2010 respectively and plaintiff /Respondent was directed to produce his exparte evidence, who accordingly adduced his evidence and on 19.6.2010 the learned trial passed an exparte decree in favour of plaintiff Haji Dilber. Afterward plaintiff/decree holder filed execution application. During the execution proceedings petitioners/defendants filed an application for setting aside said exparte decree dated 19.6.2010. The learned Court seized of the matter after hearing the arguments on the said application dismissed the, same vide his order dated 08.09.2011.
5. 4.The petitioners/defendants being aggrieved from the Exparte decree of Civil Judge-VI, Swat dated 19.6.2010 and order on the application for setting it aside dated 08.09.2011 filed an appeal before the Court of learned District Judge/ZQ Swat, who entrusted the same to the Court of Learned Additional District Judge-III/IZQ Swat who after hearing dismissed the same appeal vide his judgment on 18.05.2012. The petitioners/defendants have filed the instant Civil Revision-petition on the ground inter-alia mentioned therein.
6. 5.Arguments of learned counsel for the parties heard and ' available record perused with their valuable assistance.
7. 6.From perusal of record it reveals that suit was instituted on 12.11.2008 and notices to the defendants were ordered and issued vide order of learned trial Court dated 12.11.2008 and case was fixed for appearance on 29.11.2008 and on the same date Defendants No, /1 to 3,5,36,39 despite being served in person did not appear so were placed exparte while Defendants No, 12, 14, 16, 24, 26, 28, 29, 31, 34 and 35 were reported by the process server as dead so plaintiff was directed to submit list of legal heirs of deceased defendants. Moreover, Defendants No, 17, 18, 3,0 and 32 were reported to be out of District while Defendant No, 61 Sultan Room appeared. So proceeding was fixed for summoning of. Defendants No, 17, 18, 30 and 32 to 7.1.2009.
8. 7.On date fixed it' was holiday and case was fixed for 29.1.2009 and none among defendants except Defendants No, 4 to 6 appeared son the said .date due to curfew and case was fixed for 27.2.2009 but, proceedings adjourned due to Pak Army operation in Swat. The proceedings again initiated for notice to the parties for. 15.10.2009.
9. 8.The plaintiff in compliance with order dated 29.11.2008 submitted, list of legal heirs of deceased Defendants No, 12, 14, 16, 24, .26, 28, 29 and 31 and their names were entered with red ink on the plaint while fresh addresses of Defendants No, 30, 32, 17, 18 were also submitted and case was fixed for further proceeding.
10. 9.Case was fixed for. summoning of above said LRs of deceased defendants and other defendants to -15.12.2009; it was note' reader on that date so case was fixed for previous proceeding to 9.1.2010.
11. Defendant No, 30 was served through post but did not appear and was placed as exparte. Similarly Defendant Ne. 61 was previously present before the Court but was absent resultantly was placed exparte. On this date Defendant NO. 17 appeared so case was fixed for notice to the remaining defendants for 25.1.2010.Aeeording to available record relating case was fixed for previous proceeding to 16.4.210.
12. 10.Defendant No, 17, who was placed exparte on 9.1.2010 filed application for setting aside exparte proceeding against him on 16.4.2010 which was accepted on the same date as it was not objected by the learned counsel for plaintiff. So case was adjourned for written statement and replication on 23.4.20.10 and due to.vcas note reader and case was pasted to 29.4.2010.
13. 11.On 29.04.2010 Defendant Ne. 17 did not appear so was placed exparte while case was fixed for framing of issues, list of witnesses and arguments on application for grant of temporary injunction for 07.05.2010, 12.On 07.05.2010 Defendants No, 4 to 6 also' did not appear and were placed exparte so case was fixed for exparte evidence expatv evidence was concluded on 18.06.2010:The case was fixed for exparte arguments on 19.06.210 and learned trial Court after hearing exparte arguments passed exparte decree.
14. 13.From the perusal of record it appears that-Defendant No, 17 Khairati son of Shah Said appeared on 09.01.2009 who was placed exparte and later on submitted application for setting aside expcirte proceeding, appointed his son Sanobar as his attorney on 25.01.2010 and also engaged an Advocate, same exparte proceeding was set aside on 16.04.2010. Another. Defendant No, 61 Sultan Room also once appeared on 29.11.2008 but was later On placed later on exparte on 9.1.2010 due to nonappearance.
15. 14.Vide order dated 09.02.2013 fresh summons were issued for the legal heirs of deceased defendants and it case service in person is not possible then process server was 'directed to effect service through affixation.
16. 15.It is pertinent to mention that for the service of Defendant No, 26/1 to 26/8 29/1, 29/2, 20, 21, 23, 35, 32,.38 and 22 plaintiff moved an application for substituted service through publication in Daily Urdu Newspaper `Aazadi' which was allowed and after publication, they did not appear and were placed exparte on 30.3.2010.
17. 16.One of applicant and Petitioner No, 6 appeared as witness of plaintiff as PW2. Similarlyrest of defendants were served in person through affixation as well as through publication. Their conduct shows that the defendants and present petitioners/applicants were well aware about the proceedings of the case as well as of exparte decree and did not turn up after service through all, above discussed manners who absent themselves, so defendants/petitioners have been rightly dealt with by the Courts below in accordance with law.
18. 17.None of the defendants were aggrieved except the present petitioners who filed instant application when respondents filed execution petition much after delay of 11 months of passing a decree on 30.5.2011 and no explanation worth consideration has been advanced to the effect that despite service in person, suffixation and publication, as discussed above they did not even bother to appear to pursue the case.
18. The Article 164 of Limitation Act, 1908 provides period of thirty (30) days for an application for set aside exparte decree. In this respect reliance is placed ,on the Judgment of this Court in case titled as cited 2016 YLR 1646(Peshawar) Muhammad Ismail and 3 others versus Mst. Waheedan and 16 others. So the learned Court of first instance seized of the matter as well as the appellate Court after properly appreciating the facts as well as the conduct of the petitioners have correctly dismissed the application as well appeal for setting aside exparte decree. No reason exists and none indeed has been made out to upset the concurrent findings of two Courts below. Law favours the vigilant and not the indolent, in that the 37 slept over their rights for indefinite period shows their contumacious conduct towards Court proceedings.
19. 19.Thus in the light of above discussion, no irregularity in_ exercise of jurisdiction or any illegality has been noticed in the impugned judgments, warranting interference in revisional jurisdiction of this Court. Hence this petition being bereft of merits is dismissed with no order as to costs.