JAVAID SIDDIQ vs MUHAMMAD JAVAID UMAR KHAN and another
This petition for leave to appeal arose from a suit for recovery of Rs. 3,00,000 filed under the summary procedure of the Code of Civil Procedure 1908, which resulted in an ex parte decree against the petitioner. The petitioner subsequently filed an application under Order 9, Rule 13, Code of Civil Procedure 1908 to set aside the ex parte decree, which was dismissed by the trial court. A subsequent First Appeal from Order (F.A.O.) filed in the Lahore High Court was also dismissed. The core legal question was whether the petitioner had established sufficient grounds to set aside the ex parte decree. The Supreme Court held that the petitioner failed to provide any cogent reason for his absence or the absence of his counsel during the trial proceedings, merely asserting that the absence was not wilful. Consequently, the Court upheld the concurrent findings of the lower courts, ruling that there was no justifiable reason to interfere with the impugned judgment. The key principle affirmed is that an applicant seeking to set aside an ex parte decree must demonstrate sufficient cause for their non-appearance.
- Is a mere assertion that an absence was not wilful sufficient to set aside an ex parte decree under Order 9 Rule 13 of the Code of Civil Procedure 1908?
- Does the failure to provide cogent reasons for the absence of a party or their counsel justify the refusal to set aside an ex parte decree?
- Order 37, Code of Civil Procedure 1908
- Order 9 Rule 13, Code of Civil Procedure 1908
' TANVIR AHMED KHAN, J.--- Leave to appeal is sought against the judgment dated 18-4-2003 whereby a learned Single Judge of the Lahore High Court, Lahore, dismissed F.A.O. No,392 of 2001 filed by the petitioner.
2. Facts briefly are that the respondents-plaintiffs filed a suit for recovery of Rs,3,00,000 against the petitioner-defendant under the provisions of Order 37, C.P.C. The same was decreed ex parte on 19- 10-2000 by the learned Additional District Judge, Faisalabad, vide his judgment, dated 19-10-2000.
The petitioner-defendant filed an application under Order 9, rule 13, C.P.C. For setting aside the ex parte judgment and decree dated 19-10-2000 which was dismissed on 1-11-2001. Feeling aggrieved, he filed F.A.O. No,392 of 2001, which too has been dismissed by a learned Single Judge of the Lahore High Court, through the impugned judgment, dated 18-4-2003. Hence, this petition for leave to appeal.
3. We have considered the contentions raised by the learned counsel and have gone through the documents appended with this petition. It is reflected from the perusal thereof that the Vakalat Nama on behalf of the petitioner was filed on 10-10-2000 and the time was secured for applying for leave to defend. The case was taken up on 13-10-2000 but no body turned up from the side of the petitioner. The case was again adjourned for 16-10-2000. Even on the said date none appeared from the petitioner's side. Accordingly, the proceedings against the petitioner were taken ex parte.
Whereafter, on 19-10-2000 after recoding the ex parte. Evidence the suit was decreed. The present petitioner in his application under Order 9, rule 13, C.P.C. Had not given any reason for his own absence or that of his learned counsel. He simply stated without advancing any cogent reason that the same was not wilful.
4. The learned Single Judge of the Lahore High Court has given cogent reasons while upholding/maintaining the order of the learned Additional District Judge, Faisalabad, decreeing the suit filed by the respondents. In this view of the matter, there is no justifiable reason to interfere with the impugned judgment. Resultantly, for what has been stated above, the instant petition being devoid of any force is hereby dismissed and leave to appeal declined.