HAFIZ MUHAMMAD IKRAM vs Mst. ROBINA AKRAM
The petitioner filed a petition assailing the concurrent judgments of the lower courts and the High Court which dismissed his application for setting aside an ex-parte decree passed against him in a suit for recovery of dowry articles. The core legal question was whether the ex-parte decree ought to be set aside on the ground that the petitioner's counsel had allegedly noted a wrong date of hearing. The Supreme Court held that the petition must fail as the litigation had been pending since 1993, no contemporaneous diary or documentary evidence was produced to substantiate the counsel's mistaken noting of the date, and the concurrent findings of the lower forums warranted no interference. The key principle laid down is that an ex-parte order or decree will not be set aside on the vague plea of a counsel's wrong noting of a date of hearing in the absence of tangible corroborative evidence, particularly when concurrent findings of lower courts are in the field and protracted litigation is sought to be reopened.
- Whether an ex-parte decree can be set aside on the mere ground that the counsel noted a wrong date of hearing without producing supporting documentary evidence?
- Will the Supreme Court interfere with concurrent findings of lower courts regarding the dismissal of an application to set aside an ex-parte order?
- Can proceedings for the recovery of dowry articles be reopened after prolonged litigation due to a party's absence?
RASHID AZIZ KHAN, J.--- Facts in brief are that petitioner Hafiz Muhammad Ikram was married with Mst. Robina Akram, respondent, on 31.12.1987. On account of differences between the spouses, respondent filed a suit for dissolution of marriage which was decreed on 5.12.1990. The petitioner filed a writ petition which also failed. Subsequently, the respondent on 29.7.1993, filed a suit for recovery of dowry articles. The petitioner appeared and controverted the plaint. Issues were, accordingly, framed. Thereafter, on 27.9.1995 suit was decreed ex-parte. The petitioner moved an application for setting aside ex-parte order which was resisted by other side but ultimately application was dismissed on 17.2.1999. The petitioner appealed which also failed on 16.11.1999. A revision was filed before the High Court which too was dismissed on 19.1.2000. In the present petition, above referred judgments have been assailed.
2. The learned counsel for the petitioner contended that absence of the petitioner was not intentional instead his counsel had noted wrong date of hearing. Instead of noting 27.9.1995 he thought that next was 9.10.1995, therefore, ex-parte order should have been set aside.
3. We have heard the learned counsel at length and gone through the file. Litigation between the parties for recovery of dowry articles is going on since 1993. At this stage, proceedings cannot be re-opened. While moving application for setting aside ex-parte order reliance was not placed either on the diary where the advocates note next date of hearing nor any other document was produced to establish the mistake. All the Courts below have given concurrent finding. We are not inclined to interfere with them. The petition fails which is dismissed.