Ghulam Mustafa Mughal, J.--The captioned appeal with the leave of the Court, is filed against the judgment/order passed by the High Court on 30.07.2016 in Civil Revision Petition No.56/2014.
2.The brief facts forming the background of the captioned appeal are that the appellant, herein, filed a suit for recovery of Rs.500,000,000/- (fifty crore) against the defendant-respondent, herein, as damages in the Court of District Judge, Mirpur . The process was issued to the defendants to appear but before filing of written statement on 15.05.2012 defendant No.1 (respondent herein) was proceeded ex-parte for absence. He moved an application for vacation of ex-parte proceedings on 26.08.2014 stating therein that an application for cancellation of ex-parte proceedings was moved earlier on 21.12.2013 which is not part of the file, perhaps inadvertently the same is annexed with some other file or is misplaced, therefore, the fresh application is being moved. It was further stated that the absence of defendant was no willful, therefore, ex-parte proceedings be set aside and he be allowed to join the proceeding. The plaintif f filed objections upon the application and submitted that the application is time barred and no good cause for previous non-appearance has been shown, therefore, the application is liable to be dismissed. The learned trial Court vide order dated 26.09.2014 rejected the application. The said order was challenged through a revision petition before the Azad Jammu and Kashmir High Court on 18.10.2014. The learned High Court accepted the revision petition vide impugned judgment.
3. Mian Sultan Mehmood, Advocate, the learned Advocate appearing for the appellant vehemently argued that as the application filed by the defendant-respondent for setting aside the ex-parte proceedings was time barred, hence, in order to cover the limitation he made mischievous statement before the trial Court that some other application was filed on 21.12.2013. The fact of the matter is that no such application was ever filed by him. The learned Advocate argued that the trial Court after perusing the record has rejected the application, however , has allowed the defendant the join the proceedings in accordance with law. The learned Advocate further argued that even otherwise the application was time barred and has rightly been rejected by the learned trial Court. The learned High Court has erroneously recal led the order in violation of law. The learned Advocate submitted that the judgment under challenge is arbitrary and illegal, hence, may be set aside.
4. Conversely , Syed Nishat Kazmi, the learned Advocate appearing for the respondent contended that the previously filed application was misplaced but no inquiry has been held by the Court on the point. In the second application it was clearly mentioned that an application for setting aside the ex-parte proceedings was filed on 21.13.2013. It was enjoined upon the trial Court to record evidence or hold an inquiry to that effect. The rejection of application for setting aside the ex-parte proceedings was nullity in the eye of law. The learned Advocate argued that there is no limitation for recalling the ex-parte order . He argued that Article 181 of the Limitation Act, 1908 is applicable which provides a period of 3 years for filing the application for setting aside the ex-parte order , hence, the application was within limitation. The learned Advocate argued that on the basis of technicalities of law, a party cannot be non-suited, specially , in the present case because a heavy amount of fifty crore is claimed as damages against the defendants. In support of his submission he placed reliance on the case reported as Muhammad Hussain vs. Dana Begum & others [PLD 2004 SC(AJ&K) 20] and Sabir Ali vs. Khalida Parveen & others [2006 YLR 638]. In the first case, Order IX, Rule 7 of the Code of Civil Procedure, 1908 has been noticed by this Court and it was observed that for setting aside the ex-parte proceedings no limitation is provided. It was further observed that where the Court below has exercised the discretion in vacating the ex-parte order then the Supreme Court normally does not interfere in judicial exercise of discretion. In the other case the learned Judge of the Lahore High Court recorded similar observations.
5. We have heard the learned Advocates for the parties and gone through the record of the case. The learned High Court while exercising its discretion has vacated the impugned ex-parte order . This Court normally does not interfere in the discretion exercised in a judicious manner by the Court below . The contention of Mian Sultan Mehmood, Advocate, that the application was time barred because the same was liable to be moved on the very next date is devoid of any force as the same contention has been repelled in a similar case referred to hereinabove by the learned Advocate for the respondent i.e. [PLD 2004 SC(AJ&K) 20]. There is no limitation for setting aside such ex-parte proceedings, however , in some of the cases it has been observed that the application can be filed within a period of three years. For setting aside the ex-parte proceedings the defendant has to show good cause for his non-appearance. As ex-parte proceedings have been vacated by the learned High Court, therefore, we are not inclined to disturb the order , specially , when a heavy amount is claimed by the plaintif f against the defendant as damages. However , we have noticed that the defendant was negligent in prosecuting his case. After ex-parte order , some evidence of the plaintif f was also recorded and the case was fixed for recording his statement, therefore, we would like to amend the order of the High Court and burden the defendant-respondent with the costs to the tune of Rs.5,000/-.The ex-parte proceedings will be deemed to have been vacated subject to payment of Rs.5000/- as costs.
The order of the learned High Court is maintained with the above modification.