ABDUL GHAFOOR Versus EXCUTIVE ENGINEER, RASOOL DIVISION, LOWER JHELUM CANAL, IRRIGATION DEPARTMENT

Facts giving rise to this appeal are that the appellant, Abdul Ghafoor, brought a suit against the respondents, Executive Engineer, Rasool Division, Lower Jhelum Canal, Irrigation Department, Sargodha, and two others, for recovery of Rs.10,000 as damages. The suit was decreed ex parte by the Senior Civil Judge, Sargodha. Respondents Nos. 1 and 2 made an application under Order IX, rule 13 of the Code of Civil Procedure, for setting aside the ex parte decree, but without success. They, therefore, went in appeal before the District Judge, Sargodha. Their appeal was accepted, judgment and decree passed by the learned trial Court set aside and the suit remanded for fresh decision. Feeling aggrieved by the order of remand, the appellant has come up in appeal to this Court.

2. It was contended by learned counsel for the appellant that the learned appellate Court could not set aside the ex pane decree without the respondents' having shown sufficient cause for their absence from the learned trial Court but no such cause was shown and therefore, order of remand passed by the learned appellate Court was not sustainable.

3. In reply, it was submitted by learned counsel for respondents Nos.l and 2, who have contested the appeal, that although it eras not held by the learned appellate Court that the respondents had no sufficient cause for their absence from the learned trial Court yet the learned appellate Court set aside the ex parte decree as it was not sustainable on merits.

4. While commenting on the arguments of learned counsel for the respondents, it was urged by learned counsel for the appellant that since there was no appeal against the ex parte decree, passed by the learned trial Court, the learned appellate Court could not go into the merits of the case. It was also maintained by him that even if the appeal filed against the order of the learned trial Court refusing to set aside the ex parte decree was treated as an appeal against the said decree, it was timebarred.

5. In the application for setting aside the ex parte decree, which was made by respondents Nos. 1 and 2, the only reason given by them for their absence from the learned trial Court was that they directed a Ziledar to enter appearance on their behalf but the learned Senior Civil Judge, who tried the suit, did not allow him to appear on their behalf. As pointed out by the learned District Judge, there is no written order of the learned Senior Civil Judge in this regard. On the other hand, the record shows that the learned Senior Civil Judge did recognise the Ziledar as representative of respondents Nos. 1 and 2 and marked his presence on their behalf. He also permitted ‑him to file written statement on behalf of the said two respondents. Plea raised by learned counsel for the respondents regarding refusal of the learned Senior Civil Judge to recognise Ziledar as representative of respondents Nos. 1 and 2 is, therefore, belied by the record and is, accordingly, not accepted.

6. I am in agreement with learned counsel for the appellant than sufficient cause was not shown by respondents Nos.l and 2 for their non‑appearance before the learned trial Court on the date when ex! parte decree was passed. It was also not held by the learned appellate Court that the said respondents had shown any such cause. No legitimate exception can, therefore, he taken to the order of the learned trial Court by which it had declined to set aside the ex-parte decree.

7. Learned counsel for the respondents could not cite any authority for the proposition that the learned appellate Court could go into the; merits of the ex parte decree without their having filed an appeal against the said decree, although the said learned counsel got morel than a year's time to look into this point. I have carefully gone through the grounds of appeal filed by the respondents before they learned appellate Court and find that this appeal is directed against the order of the learned trial Court by which their application for setting aside the ex parte decree was dismissed. There is no prayer for setting aside the ex parte decree, on merits. Their appeal before the learned appellate Court cannot, therefore, be treated as appeal against the said decree. Assuming without conceding that it was also an appeal before the learned appellate Court for setting aside the ex parte decree on merits, it was badly timebarred and there was no application for condonation of delay. Looked at from any angle, the appellate Court could not examine the merits of the ex parte decree.

8. As already indicated, respondent‑No.3 made no application for setting aside the ex parte decree. As for respondents Nos.l and, 2, who had filed such an application, they did not show sufficient cause for their absence from the learned trial Court. Learned trial Court was, therefore, justified in dismissing their application. Learned appellate Court did not find any fault with the order of the learned trial Court in this regard: It proceeded to set aside the ex parte decree, on merits, which for reasons already given, it could not do. Order passed by the learned appellate Court was, therefore, not warranted by law.

9. This appeal is, accordingly accepted with costs, and the impugned order set aside.

M.B.A./A‑239/L Appeal accepted.