MUHAMMAD AYUB KHAN Versus JEHANDAR

A suit for recovery of Rs.15,000 was filed by the plaintiff‑respondent against the defendant‑petitioner on the foot of pronote, photo copy Exh.P.W.l/1 and agreement Exh.P.W.l/2. The defendant‑petitioner appeared on 21‑5‑1989 and filed written statement wherein he challenged the propriety of the receipt and the pronote and dubbed them as fictitious and forged. After striking the issues the parties filed lists of witnesses. The entire evidence of the plaintiff‑respondent was recorded on 30‑10‑1989. The plaintiff‑respondent, apart from this testimony, proved the execution of the pronote and receipt and agreement deed, photo copies Exh.P.W.1/1 and Exh.P.W. 1/2 respectively by examining S. Muqadar Shah, Deed Writer (P.W.1) Hamayum Khan and Syed Jamhoor Shah (P.Ws.2 and 3) who stated that a sum of Rs.15,000 was paid in their presence by the plaintiff‑respondent to the defendant‑petitioner in token whereof the latter had put his thumb‑impression thereon. The four P.Ws.were also cross‑examined but nothing seemed to have come to surface to prove the plea of the defendant‑petitioner that the receipt and pronote, photo copy Exh.P.W.l/1, was either forged or fictitious. Thereafter the case was posted to 31‑1‑1990 for the evidence of the defendant‑petitioner but he failed to appear on the date aforesaid and on the basis of the evidence already produced by the plaintiff‑respondent, an ex parte decree for recovery of the suit money followed on the same day. The plaintiff‑decree‑holder took out execution proceedings. Nothing seems to have been done by the defendant‑petitioner for a period of about six months. On 8‑7‑1990, however, the defendant‑petitioner put in an application under Order IX, rule 13, C.P.C., for setting aside ex parte decree against him on the ground of his illness. This application was obviously resisted by the plaintiff‑respondent. The learned trial dated 3‑12‑1990 dismissed the application on the ground of delay and his failure to support his plea of illness by any medical evidence or other supporting material. In appeal, the learned Additional District Judge affirmed on 27‑5‑1991 both the aforesaid grounds for refusing to set aside ex parte decree. He has now invoked revisional jurisdiction of this Court.

2. Solitary contention raised in support of this petition is that the plea for setting aside ex parte decree was not liable to be determined without affording an opportunity to the petitioner to adduce evidence. Reliance is placed on Messrs Raheem Steel Re‑Rolling Mills and 4 others v. Messrs Karim Aziz Industries (Pvt.) Ltd. (1988 C L C 654) and Muhammad Aslam v. Nighat Sultana (1988 C L C 1873).

3. There is no cavil with the proposition laid down in the above‑cited case law that sufficiency of the pleaded cause for the absence of a party should be allowed to be proved as a fact. This proposition, however, is not attracted to the cases where even if such cause is assumed to be proved for the purpose of setting aside ex parte decree, it would not suffice for doing so. A party to the cause after having participated in the proceedings remains absent not on one hearing but for long six months would not justify allowing the cause to be lingered on and that as and when the delinquent party felt like, it would be set aside. The law helps the vigilant litigants and not those who are indifferent or resort to abuse of the process of the Court. The present case is the classical example of the last mentioned category of the litigants. There was really nothing capable of being proved by the petitioner in the Courts below which had not disbelieved his assertion but had regarded it insufficient for the purposes of setting aside the ex parte decree and rightly so. The contention thus raised fails.

4. It may also be observed that even if the ex parte decree is set aside, the initial presumption of correctness attached to the pronote Exh.PW.l/1 could not be dislodged by the petitioner in the cross‑examination of the P:Ws that it was tainted with fraud or was otherwise fictitious. The evidence already adduced is foolproof and not capable of being thrown out on the simple averments of forgery/fictitiousness or its being without consideration the details of which could not be furnished by the petitioner in the written statement. Then the application for setting aside ex parte decree is clearly barred by time by more than three months, therefore, it would have been of no consequence; even if the prayer of the petitioner had been acceded to.

5. As a sequel to the foregoing discussion the impugned orders passed by the two Courts below are unexceptionable and have not been shown to be suffering from any error of law or jurisdictional defect calling for interference, which even otherwise cannot be exercised in favour of the petitioner. The revision petition having no merits is dismissed in limine.

H.B.T./1317/P ???????????????????????????????????????????????????????????????????????????????????? Revision dismissed.