NISAR AHMAD Versus Messrs NATIONAL BANK OF PAKISTAN Ltd.
This Revision is directed against an order dated 27-5-1979 and dated 2-10-1980 passed by the learned Senior Civil Judge/ASJ-II Karachi and the learned IIIrd Additional District Judge, Karachi in Suit No.770 of 1977 and Civil Miscellaneous Appeal No.188 of 1979 respectively, declining the present petitioner's application under Order XI, Rule 13, C.P.C.
2. The brief facts leading to the filing of the above Revision are that the respondent-bank filed aforesaid suit for recovery of Rs.18,445.65 against the present petitioner and 2 other defendants. It seems that the petitioner/defendant No.1 was served with the summons and on 8-8-1978 he was ordered to file written statement. After that the above defendant took several dates for filing written statement and the case had come up for service of the summons on the remaining two defendants. It appears that on 25-7-1978 an ex parte order was passed against the present petitioner and the other defendants in the suit and the case was fixed for filing affidavit in ex parts proof on 8-8-1978, which was filed on the latter date and the case was fixed for judgment on 17-8-1978 when the above ex parte judgment was passed. It seems that the present petitioner riled an application under Order IX, Rule 13, C.P.C. on or about 16-9-1978 for setting aside the above ex parte judgment/decree. The above application was not supported by an affidavit of the petitioner but the learned counsel for the petitioner then appearing MrA.Q.Malik, who is also appearing in the above Revision Petition, filed his personal affidavit in which it was alleged that the petitioner had not received the copies of the Annexures, and therefore, could not file the written statement. The learned trial Court discarded the above affidavit on the ground that Mr.Malik learned counsel who filed the affidavit was engaged by the petitioner on 14‑9‑1978 i.e. after the date of the passing of the ex parte decree. Consequently he dismissed the above application by his aforesaid order dated 27‑5‑1979. Being aggrieved by the above order the petitioner filed Civil Miscellaneous Appeal No.188 of 1979, which was dismissed by the learned III Additional District Judge, Karachi by his order dated 2‑10‑1980. The petitioner being aggrieved by the above two orders has filed the present Revision Petition.
3. In support of the above petition, Mr. A.Q.Malik learned counsel for the petitioner has vehemently urged that the learned trial Court was not justified in passing the ex parte order on 25‑7‑1978 as the case was not specifically fixed for filing the written statement. His further submission is that the learned two Courts below should have taken liberal view in the matter and should have accepted the affidavit of the counsel in place‑ of the petitioner.
4. Adverting to the first submission of the learned counsel for the petitioner that the case was not specifically fixed for riling of written statement by the petitioner, it may again be observed that as far back as on 11‑8‑1977 the petitioner was given time to file written statement by 12‑9‑1977. After that he filed several, applications for extension of time for filing of written statement, which were allowed. The case had come up for hearing on a number of dates for the service of summons on the remaining defendants and for filing of written statement by the present petitioner.
In my view at no point of time the above original order dated 11‑8‑1979 for filing of the written statement by the petitioner was withdrawn or modified and, therefore, the learned trial Court could have passed an ex parte order inter alia against the present petitioner for non‑filing of written statement by 25‑7‑1978 when the above ex parte order was passed.
As regards the second submission of the learned counsel for the petitioner that the learned two Courts below should have taken liberal view in the matter and should have allowed the petitioner to defend the suit, it may be observed that the Courts always lean towards disposal of cases on merits than ex parte. However, at the same time the Court is bound to examine the question whether sufficient cause is shown for getting an ex parte decree set aside.
In the present case it is an admitted position that MrA.Q.Malik learned counsel for the petitioner was engaged in the suit after the passing of the ex parte decree and, therefore, he was not a person who could have vouched for the sufficient cause for non‑filing of the written statement or for non‑appearance on the day when the ex parte order was passed. The petitioner had not only not filed the written statement but also had not appeared on 25‑7‑1978 and thereafter on 8‑8‑1978 and 17‑8‑1978 when the ex parte decree was passed on the latter date.
I am inclined to agree with the learned trial Court that the petitioner had failed to make out a case of sufficient cause for setting aside the ex parte decree as there was no affidavit in support of the application of a person who could have vouched on oath sufficient reason for non‑appearance. The learned Appellate Court has also acted in accordance with law in maintaining the above order The above two orders do not call for interference in exercise of revisional jurisdiction of this Court.
The Revision is, therefore, dismissed but there will be no order as to costs.
M.Y.H./N‑99/K Petition dismissed.