GHULAM SARWAR vs MUHAMMAD HUSSAIN And Other

ORDER

SAAD SAOOD JAN, J.-- The respondents in this petition for special leave to appeal filed a suit against the petitioner for specific performance of an agreement to sell agricultural land. The petitioner did not contest the suit; consequently on 7-12-1982 the suit was decreed ex parte. On 10- 5-1983 the petitioner moved an application for setting aside the ex parte decree alleging that he had not been served with any summons and that the ex parte decree had been obtained by the respondents fraudulently. This application was resisted by the respondents. The trial Court framed a number of issues; one of these was to the effect whether sufficient grounds existed for setting aside the ex parte decree. The petitioner as well as the respondents led evidence and after considering the same the trial Court came to the conclusion that the petitioner had been properly served with summons in the suit; accordingly, it dismissed the application. The petitioner preferred a revision petition before the Additional District Judge who affirmed the finding of the trial Court and dismissed the revision petition. The petitioner then moved an application under section 12 (2) of the Code of Civil Procedure re-iterating the grounds that the ex parte decree had been obtained fraudulently for there had been no proper service. He also alleged that he had not entered into any agreement with the respondent to sell his land. The application was dismissed by the trial Court and its decision was affirmed by the Additional District Judge as well as the High Court. The petitioner now seeks leave to appeal from this Court.

2. After hearing the learned counsel for the petitioner we are not persuaded that this is a fit case for interference by this Court. The petitioner's assertion that he was not served with any summons was inquired into in the proceedings which ensued upon his application for setting aside of the ex parte decree. The finding on his assertion in this regard went against him. The provision of section 12 (2) of the Code of Civil Procedure are not intended to be a duplication of the proceedings provided for in Rule 13, Order IX, Code of Civil Procedure. As regards his other plea that he had not executed any agreement to sell his land it would have been looked into had he elected to contest the suit. This he did not care to do. In the circumstances we would dismiss this petition.