This civil revision is directed against the judgment of the learned District Judge, Faisalabad, dated 15-7-1985 dismissing the petitioner's appeal against the order of the Civil Judge dated 25-3-1985 whereby his application for setting aside the ex parte decree granted in favour of the respondent was dismissed.
2. Facts giving rise to this revision petition, briefly stated, are that Rana Muhammad Ramzan respondent, an Advocate of Faisalabad, brought a suit for mandatory injunction against the Municipal Corporation, Faisalabad, petitioner herein, in respect of a public latrine which the petitioner-Corporation had constructed adjacent to his Chamber in District Court, Faisalabad. It was alleged by the plaintiff-respondent that on account of defective sewerage system of the said latrine, his chamber had been damaged and the latrine was stinking all the time, which had made it impossible for him to sit and work in his office. A prayer was, therefore, made that the petitioner- Corporation be directed to remove the public latrine in question from its present site. The suit was contested by the Municipal Corporation which gave rise to the following issues:--
(1) Whether the plaintiff lacks cause of action ?
(2) Whether the suit is not maintainable in the present form ?
(3) What is the effect of lack of notice under section 173 of Punjab Local Govt. Ordinance ?
(4) Whether the plaintiff is allottee in possession of chamber No. 5 situated in the District Courts premises? If so, whether the public latrine managed by the Municipal Corporation through contract damaged the chamber and polluted the office atmosphere on account of defective sewerage system. If so, whether Municipal Committee is liable to remove the latrine in dispute ?
(5) Whether the plaintiff is entitled to recover damages from the defendant, if so to what extent ?
(6) Relief.
3. Evidence of the plaintiff-respondent was recorded on 31-1-1984 and the case was adjourned to 1- 3-1984 for the evidence of the defendant-Corporation. On that date, neither the petitioner's counsel nor any one else duly authorised by the petitioner appeared in Court. Learned trial Court, therefore, ordered ex parte proceedings against the petitioner and adjourned the case to 3-3-1984 on which date, the Court passed ex parte decree against the petitioner on the basis of evidence led by the respondent.
4. Petitioner moved an application for setting aside the ex parte decree on 20-3-1984. The application was opposed by the plaintiff. An issue was accordingly framed whether there were sufficient grounds for setting aside the ex parte decree dated 3-3-1984. Parties produced evidence in respect of their respective contentions. Abdul Majid, Court Clerk of the petitioner-Corporation, appeared as AW.
1. He stated that when the case was called out on 1-3-1984, he appeared and sought permission to call the counsel. He then went away to fetch his counsel who was busy in his personal case. He, however, admitted that he did not come back to. The Court again nor did the petitioner's counsel appeared in the Court on that date. He also admitted in cross-examination that he had no letter of authority to appear on behalf of the Municipal Corporation on that date. He stated that he was later informed that the case was adjourned to 3-3-1984 but he had not come to know of the order for ex parte proceedings. He further admitted that the judgment was announced in his presence on 3-3-1984. Plaintiff-respondent appeared as his own witness and deposed that the case was fixed for the defendants's evidence on 1-3-1984 but no one appeared for the defendant on that date despite repeated calls.
5. Learned trial Court after considering the evidence of the parties and its own orders on the file came to the conclusion that there was no good cause shown by the petitioner for setting aside the ex parte decree. It was noted that the petitioner's representative appeared only once in the morning and then he did not turn up for the whole of the day though the case was kept in waiting till last and it was after making repeated calls and no one appearing for the petitioner that the ex parte proceedings were ordered. It was also observed by the trial Court that the petitioner came to know of the ex parte decree on 3-3-1984 but it made an incorrect averment in its application (which was drafted on 14-3-1984) that it became aware of the ex parte decree only on that date.
For all these reasons, learned trial Court by its order dated 25-3-1985 dismissed the petitioner's Application for setting aside the ex parte decree.
6. Petitioner preferred an appeal but with no better result as that, too, was dismissed by the learned District Judge on 15-7-1985 affirming the findings recorded by the trial Court. Learned District Judge after adverting to the evidence on the record observed that- the ex parte decree was passed against the petitioner on account of its own negligence and intentional absence.
7. I have heard the learned counsel for the parties. Learned counsel for the petitioner submitted that since the representative of the Municipal Corporation was present on the first call, learned trial Court should not have passed order for ex prate proceedings. I find no substance in this submission. The so-called representative of the petitioner who appeared on the first call was only the Court---clerk of the petitioner who appearing as AW.1 admitted that he had no authority to appear for the petitioner. His appearance in the Court was, therefore, of no consequence. In any case, he is shown to have appeared only on the first call made in the morning and thereafter neither he nor the petitioner's counsel appeared in the Court. The learned trial Court, therefore, was perfectly justified in ordering ex parte proceedings against the petitioner. It may also pertinently be observed that no one duly authorised by the petitioner appeared even on the adjourned date viz. 3-3-1984. In the circumstances learned Courts below have rightly held that the non-appearance of the petitioner and/or its counsel on the date fixed for hearing was a case of negligence and wilful absence and, therefore, there was no good ground to set aside the ex parte decree. The impugned orders of the Courts below dismissing the petitioner's application for setting aside the ex parte decree do not suffer from any illegality or jurisdictional defect and, therefore, they do not call for any interference to revisional jurisdiction of this Court.
8. Learned counsel for the petitioner also sought to assail the validity of the ex parte judgment/decree on the ground that the learned trial Court failed to give any finding on the issues regarding the maintainability of the suit in its present form and the effect of want of notice prescribed under section 173 of the Punjab Local Government Ordinance. After some arguments, however, learned counsel quite frankly conceded that the failure to serve the notice provided a/s. 173 of the aforesaid Ordinance was not fatal to the suit. He also expressed his inability to ,how as to how on the averments made in the plaint, the suit for mandatory injunction brought by the plaintiff-respondent was not maintainable. It may also be observed that the issues in question were framed on the objections raised by the petitioner. It failed to appear and suffered ex parte proceedings with the result that the learned trial Court observed and rightly so that the said issues were not pressed.' Petitioner cannot now make a grievance regarding the non-decision of these issues.
9. Upshot of the above discussion is that there is no merit in this revision petition which is hereby dismissed but with no order as to costs.
M.Y.H./M-1411 /L Ex parte decree Uphold