' In a suit filed by the respondent for specific performance of agreement to sell land, executed on 21-4-1969 by some of the defendants for a sum of Rs.83,375 whereof Rs.10,000 had been received as earnest money, the defendants entered contest by denying the claim of the plaintiff. They were ordered on 24-4-1984 to be proceeded ex parte on account of their failure to appear.
2. A petition was filed by them on 26-5-1984 for recall of the order, dated 24-4-1984 on the plea that the relevant date was inadvertently noted as 24-5-1984 on which date Javed Ahmad attorney of defendants Nos. 1 and 3 to 6 came to attend to the case and discovered that in fact the date was 24-4-1984. It was also stated that counsel for defendants Nos. 1 and 3 to 6 was busy attending to some other case at Gujranwala and the non-appearance of the attorney of the defendants and their counsel was not intentional. Plaintiff contested the petition by denying the assertions and alleging that there was a wilful default in appearance. It was also pointed out that the defendants had already been proceeded ex parte and the relevant order had been upheld upto the High Court. The right of the defendants to participate in the proceedings from then on, if they choose to do so, was not contested. By his order, dated 27-5-1984, learned trial Judge disposed of this application with the observation that defendants Nos. 1 and 3 to 6 are habitual defaulters and had been proceeded ex parte earlier as well and they can only participate in the proceedings. It was also observed that the last date was fixed in the presence of the counsel for defendants who were not vigilant in attending to the suit. The said defendants have now come up to this Court on revision.
3. Learned counsel has argued that the petitioners were not liable to be excluded from effective participation in the suit on account of default in their appearance which had been adequately explained and that since it is not the intention of the law that administration of justice may be hampered on the basis of mere technicalities, therefore, the petitioners were entitled to be relegated to the position of 24-4-1984. In reply, learned counsel for respondent-plaintiff has submitted that the petitioners were proceeded ex parte once earlier also on 26-11-1975 and prayer for recall of the order having been declined on 29-11-1976 they had challenged this order in Civil Revision No. 1210 of 1976 which, however, was dismissed in default on 20-9-1980 and an application for its restoration was also got dismissed in default on 19-5-1981 which was subsequently got restored to have it again dismissed on 14-12-1982 for want of instructions and an application moved for having the matter resurrected was also dismissed on 5-4-1983 whereagainst the petitioners have gone to the Supreme Court where the matter is still pending. With these facts, not controverted by the learned counsel for petitioners, he has urged that this is a wilful suppression of material facts on the part of the petitioners who have thereby rendered themselves disentitled to the grant of discretionary relief of revision. He has also pointed out that there is no affidavit of the concerned counsel filed with the petition for restoration to explain his absence so that the plea for restoration on that count has been left unsubstantiated. He has lastly submitted also that in the presence of the order for ex parte proceedings passed on 26-11-1975, which is still in force, the order impugned herein does not place them in any more disadvantageous position than they were placed in the year 1975 because it concedes to them a right of participation in the proceedings.
4. After giving my anxious consideration to the respective contentions of the learned counsel for parties, I have come to the conclusion that the submissions made for the respondent have force because the trial Court's order, dated 27-5-1984 is neither fanciful nor A arbitrary and has rather been passed in accordance with the law, whereagainst the petitioners do not appear to have any legitimate cause of grievance. In refusing to set aside the order placing the petitioners ex parte, learned trial Judge has justifiably taken notice of the previous conduct of the petitioners which had to regulate his discretion in the matter, as held in Bashir Ahmad etc. v. Settlement and Rehabilitation Commissioner 1982 SC MR 188. It is also correct that there is not even a casual reference made by the petitioners to the previous Order now sub judice before the Supreme Court and they have disentitled themselves to the exercise in their favour of discretionary jurisdiction of revision, as held in Abdul Hafeez v. Board of Intermediate and Secondary Education and another 1983 SCMR 566. Then, the other difficulty in the way of the petitioners is that as has been held in Muhammad Bux v. Muhammad Ali 1984 SCMR 504 the mere fact that findings of Courts below may be wrong on a point of fact or on a point of law unrelatable to exercise of jurisdiction, would not bring the case within the four corners of section 115 of the C.P.C. Since the impugned order has not excluded the petitioners from participating in the proceedings of the suit, therefore, it seems to be a just and proper order passed in the circumstances and I am not persuaded to exercise my revisional jurisdiction in the above set out facts of this litigation .
5. Upshot of the foregoing is that there is no case made out for exercise of revisional jurisdiction.
Hence this civil revision is dismissed. The parties, are, however, left to bear their own costs.