MIAN BURHANUDDIN KHAN, J.-Leave is sought against the order of a. Learned single Judge of the Peshawar High Court dated 14-12-1981 in Civil Revision No. 473 of 1981.
2. The plaintiffs-respondents (respondent No. 1 before us) brought a suit against the petitioner and other respondents, for the recovery of Rs. 1,32,600 as arrears of rent. All the respondents, except the - petitioner, were proceeded against ex parte. Some adjournments were allowed on the request of the petitioner for submission of written statement but he failed to avail himself of. The opportunity to submit his written statement within the time specified by the trial Court. On 22-7-1981, the defence of the petitioner was struck off and the case was adjourned to 2-9-1981 for ex parte evidence. After recording such evidence as the plaintiff-respondent wished to adduce, ex parte decree was passed on the same date.
3. Learned counsel for the petitioner contended before us that the impugned order passed on 22- 7-1981 was bad in the eye of law and that the subsequent order dated 2-9-1981 based on it was also not sustainable. In support of his view he relied on Yusuf A.I v. M. Aslam Zia and 2 others and M.
Aslam Zia v. Yusuf A.I ( PLD 1958 SC (Pak.) 104): "If on the basis of a void order, subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the -round because such orders have as little legal foundation as the void order on which they are founded."
4. It was observed by the learned Judge of the Peshawar High Court that the principle of law laid down by their Lordships would not be attracted to the facts of the present case for the reason that the order dated 22-7-1981 was interlocutory in character and was followed by a decree and not by an order. Life of the aforesaid interlocutory order came to an end with the passing of the ex parte decree against the petitioner on 2-9-1981. They observed that the term interlocutory means provisional ; temporary; not final ; something intervening between commencement and the end of a suit which decided some point or matter but is not a final decision of the whole controversy. Had the ex parte decree not been passed the interlocutory order would have held the field and could be assailed by the petitioner in revision.
5. The learned counsel for the caveator referred to S. Azizul Hassan and another v. Malik Ghulam Muhammad (1971 SCMR 123), where it has been laid down: "The view thus arrived at was 'that the trend of judicial opinion is now to the effect that if a decree or an order, which is in the nature of a decree under the Code of Civil Procedure, has been passed by the Court of first instance, and it is appeal able under the Code then whether the appeal lies immediately to the High Court or only after another appeal has been taken before the District Judge, the revision would not be competent'. ' On principle also this Court was of the view that there existed no valid reason for barring the revisional jurisdictional only where an appeal lies directly to the High Court. The Court observed that to adopt such a narrow interpretation would lead to the result that a party aggrieved from a decree or order from which an appeal lies to the District Judge would try to short circuit the procedure prescribed by the Code and come direct to the High Court."
These quotations are from Municipal Committee Bahawalpur v. Sh. Afzal Ilahi (PLD 1970 SC 506.).
Reliance was also placed on Masra v. Sarang and another (PLD 1969 SC 261).
6. We have examined the contentions of both sides and find that on the first date of hearing i.e. 16- 6-1981, tile defendant-petitioner was present and Sher Zaman Kundi, Advocate placed his Vikalatnama and the rest of the defendants were absent; so they were proceeded ex parte. The case was adjourned to 22-6-11981. On this date counsel for the parties were present and the defendant-petitioner had asked through his counsel for adjournment to file his written statement. It was on this request that hearing was adjourned to 12-7-11981. On 12-7-1981 Bahadur Sher, Enquiry Clerk, on behalf of the petitioner-defendant, made appearance and requested again for time to submit written statement and again it was adjourned to 22-7-1981. Order Sheet of this date would show that parties were present but no written statement was filed by the defendant-petitioner and his defence was struck off and the case was postponed to 2-9-1981. On this date evidence was recorded and a decree was passed by the Senior Civil Judge, Peshawar vide his order dated 2-9- 1981. This order obviously is made under Order XVII, rule 3 of the C. P. C. This Rule applies where a party who is granted time to perform some act, not only fails to do so but is also absent on the date to which the hearing is adjourned. It is immaterial whether the adjournment was granted at the instance of the party or for other reasons. Where a defendant does not appear at an adjourned hearing, this rule applies irrespective of whether he appeared at the first hearing or not and the Court has to exercise its discretion its hands are not tied by the previous ex parte order. For these reasons we do not consider this petition has any merit and is, therefore dismissed.