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Petitioner: MURTAZA ALI VS Respondent: SABIR ALI BANGASH
Court Name: Sindh High Court Judge(s): Aziz-ur-Rehman Title: MURTAZA ALI vs SABIR ALI BANGASH Case No.: Suit No,643 of 2007suit No, 'Nil' of 2005suit No, 'Nil' of 2005suit No, 'Nil' of 2005 Date of Judgment:2014-07-01 Reported As: 2015 YLR 1239 Result: Application allowed
Judgment ORDER ' AZIZ-UR-REHMAN, J.---By means of this application under Order IX, Rule 13 read with section 12(2) read with section 151, C .P.0 . [C . M . A . No,9052 of 2011] the defendant is seeking setting aside of the Ex-parte Judgment' and 'Decree' dated 30-4-2008 and 9-8-2008 respectively passed in Suit No,643 of 2007 [Murtaza Ali v. Sabir Ali Bangash] against the defendant as 'prayed'. 2. The relevant facts in small compass giving rise to the filing of C.M.A. No,9052 of 2011 in the background read as follows:-- 3. The aforesaid suit filed by the plaintiff on 24-8-2005 was/is for Specific Performance of Contract dated 15-12-1998 alternatively for refund of US Dollars 1,16,900 or its equivalent in Pakistani currency Rs,11,46,363 [in case relief of Specific Performance of contract is not granted], damages in the sum of Rs,28,000,000 (Rupees Twenty Eight million only) and recurring damages @ Rs,1,00,000 [Rupees One Lac only] per month from the date of filing of the suit till delivery/supply of the timber or refund of the amount. The prayer sought by the plaintiff read as follows :-- (a) Specific performance of the agreement dated 15-12-1998 [annexure 'A' to the plaint] directing the defendant to take all such steps as are necessary for supplying of 12,266 cubic feet [443 cubic meters] of timbers in terms of the agreement dated 15-12-1998 and to supply the said 12,266 cubic feet [443 cubic meters] timber to the plaintiff. Alternatively for refund of US $ 1,16,900 or its equivalent in Pakistan currency and Rs,11,46,363 in case relief of specific performance is not granted; (b) Payment of Rs,2,80,00,000 as damages; (c) Payment of recurring damages at the rate of Rs,1,00,000 per month from the date of filing of the suit till delivery/supply of the timber or refund of the amount.
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(d) Cost; (e) Such further and other relief that this Hon'ble Court may deem fit and proper in the circumstances of the case. 4. Per averments made in the application under Order IX Rule 13 r/w section 12(2) read with section 151, C.P.C. [C.M.A. No,9052/2011] and its supporting affidavit, the 'ex-parte judgment and decree' passed as 'prayed' in Suit 643/007 [Murtaza Ali v. Sabir Ali Bangash], have been obtained, inter alia on the basis of 'misrepresentation', 'fraud' and concealment of facts by the plaintiff [Decree- holder]. 5. The plaint, as is evident from the record, was presented on 24-8-2005 but it was not admitted until 22-5-2007 when the 'OFFICE OBJECTION' regarding bar of the suit under Article 113 of Limitation Act, 1908 [IX of 1908] was over-ruled. In the 'prayer clause' the plaintiff, inter alia had also sought specific performance of the agreement purportedly signed on 15-12-1998. Nevertheless, it is worth to note that under Article 113 of the Limitation Act, 1908 (IX of 1908), the time period for the 'Specific Performance' of the Contract is 03 years. 6. On 28-11-2005, when the above Suit No2.'Nil' of 2005 came-up before the court for orders on the 'OFFICE OBJECTION' then, the following order was passed:- '28-11-2005 Mr. Badarul Alam, Adv. -x- Let in the first instance notice be issued to the defendant for 12-122005 for hearing on the office objection. ' [Underlining is added for emphasis]. 7. Apparently, on 12-12-2005, the case stand discharged. Thereafter, on 16-1-2006 at the request of the plaintiff, the case was adjourned. From perusal of the subsequent order passed on dated 27-2- 2006, it transpires, that notice regarding 'OFFICE OBJECTION' was received by the son of the defendant. Nonetheless, due to absence of the defendant in court 'fresh notice' was ordered to the defendant by all modes including publication. Notice, in terms of order dated 27-2-2006, was not issued to the defendant by all modes including publication, however, Mr. Irfan of Messrs Amanullah Khan Advocates, on 2-10-2006, filed his power on behalf of the defendant. On demanding copies of the pleadings, the learned counsel for the plaintiff, undertook to supply the same. The case, thereafter was adjourned to 9-10-2006 for hearing of 'OFFICE OBJECTION'. Per PUBLICATION of notice in 'Daily Jang' dated 11-3-2006, the case was notified as 'dismissed' [KHARIJ KIA GIA HAI] in terms of Article 113 of the Limitation Act, 1908 (IX of 1908). 8. Much after i,e, on 9-10-2006, neither the plaintiff nor the plaintiffs counsel was in attendance, therefore, the Suit No, 'Nil' of 2005, at the stage of hearing of 'OFFICE OBJECTION', was dismissed for 'NON-PROSECUTION'. Upon dismissal of the Suit bearing No,'Nil' of 2005 for 'NON-PROSECUTION', the plaintiff thereafter, filed an application under Order IX, Rule 9, C.P.C. Read with section 151, C.P.C. [CMA No,7881 of 2006] with a prayer for restoring the suit to its 'ORIGINAL POSITION'. 9. On 6-11-2006. Notice to the defendant on C.M.A. No,7881 of 2006 [being an application under Order IX, Rule 9, C.P.C., r/w S.151 C.P.C.], was ordered. From the bailiffs report dated 16-12-2006, it reveals, that notice was served on the defendant's counsel and not on the defendant himself. The defendant's counsel, it is worth to mention, after dismissal of the suit on 9-10-2006 was not supposed to appear on behalf of the defendant. Thereafter, on 22-1-2007, without issuing any notice to the defendant, the case was adjourned for a date to be fixed by the office obviously at the request of plaintiffs counsel. Upon dismissal of the Suit No,'Nil' of 2005 for 'NON-PROSECUTION, defendant was issued a LEGAL NOTICE dated 27-2-2007, by his counsel for discharge of his 'VAKALATNAMA'. The relevant part of the notice issued to the defendant by his counsel reads as follows:-- "...I have to advice you that the above suit is fixed in court on 12-3-2007.
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I, therefore, call upon you and demand of you to pay my Professional Fee and Misc. Expenses in the above suit within a week hereof failing wherein I shall not appear in the above suit on 12-3- 2007 on your behalf and you shall be responsible for the consequence." [Underlining is added for emphasis]. 10. From perusal of the order sheet, however, it transpires that the case, as mentioned in the legal notice dated 27-2-2007, was never fixed in court on 12-3-2007. It is worth to mention, that on 9-10- 2006, the suit was dismissed for 'NON-PROSECUTION' at the stage of hearing of 'OFFICE OBJECTION' but in the Notice published long ago in 'Daily Jang' of 11-3-2006, the suit was notified as 'KHARIJ KIA GIA HAI'. Such publication in 'Daily 'Jang' of 11-3-2006 besides fraudulent was misleading. 11. Nevertheless, on 7-5-2007, when C.M.A. 2120 of 2007 [i,e, an APPLICATION under Rule 50 SCCR [O.S.] filed on 22-3-2007, for discharge of 'VAKALATNAMA' by learned counsel for the defendant], came-up before the court along with another application bearing C.M.A. No,7881/2006 for RESTORATION of Suit Not 'Nil' of 2005, [dismissed on 9-10-2006], then both the aforesaid applications were granted and 'Vakalatnama' of learned counsel for the defendant was discharged, and Suit No,'Nil' of 2005 was also restored to its 'ORIGINAL POSITION'. Being relevant order dated 7-5-2007, is reproduced herein below:-- "7-5-2007 Mr. Badrul Alam, Advocate for Plaintiff Mr. Amanullah Khan, Advocate for defendant (1) Mr. Amanullah Khan has resorted to move an application under Rule 50 of Sindh Chief Court Rules ['O. S.] for withdrawal of his Vakalatnama, as he has served a notice upon defendant dated 27-2-2007 and has produced a copy of .Notice along with Acknowledgment Receipt. In this view of matter, his request is acceded. He is discharged from appearing on behalf of defendant. Office is directed to issue intimation notice to the defendant in this behalf, his name be removed from the file cover. Mr. Badrul Alam has contended that suit was dismissed for NON-PROSECUTION on 9-10-2006, he could not appear on the date of hearing on account of sickness. However, at 10.00 A.M., it transpired that suit was dismissed in NON-PROSECUTION therefore, he has proceeded to file application on 10- 10-2006 for restoration of suit. It is contended by learned counsel for plaintiff that been filed within time along with supported his personal affidavit. He could not appear on the date on account of his sickness therefore, it could not be conveniently held that absence on the date of hearing was neither wilful nor deliberate. ' It appears that office has raised certain objections, which were to be heard. Suit was dismissed in NON-PROSECUTION, cogent reason has been shown by the learned counsel for nonappearance therefore, impugned order is hereby set-aside. Suit is restored to its ORIGINAL. POSITION. (Underlining and emphasis supplied]. ' To come-up on 22-5-2007 for hearing of office objections." ' 12. The suit No,'Nil' of 2005, dismissed on 9-10-2006, thus was restored to its 'ORIGINAL POSITION', however, without proper service upon the defendant. Even order dated 7-5-2007, seems self- conflicting, as on one hand 'intimation notice' was ordered/issued to the defendant and on the other hand suit [dismissed on 9-10-2006J, was straight away restored to its 'ORIGINAL POSITION' without any service on the defendant in terms of order dated 6-11-2006. Per bailiff report of 22-5- 2007, the Notice issued remained unserved on the defendant. Not only this, even the 'INTIMATION NOTICE' issued in terms of order dated 7-5-2007 for 22-5-2007, per bailiff report dated 22-5-2007, also remained un-served on the defendant. 13. On 22-5-2007, when again the matter came-up before the court then the 'office objection' at the back of defendant was OVER-RULED, without service of notice/intimation notice upon the defendant i,e, after discharge of Vakalatnama of Mr. Amanullah Khan/Irfan, Advocates. It is important to note, that in the 'NOTICE OF DISCHARGE OF VAKALATNAMA' the case was notified as
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fixed in court on 12-3-2007 but in fact, as is evident from the record, the case, was ever fixed in court on 12-3-2007. The operative part of order dated 22-5-2007 reads as follows:-- "In any event no time for completion of the contract was fixed, under Article 113 of Limitation Act time shall commence when the plaintiff had notice that performance was being refused. The refusal came to the plaintiff's knowledge when notice served on the defendant remained unacknowledged. I am therefore of the view that the suit is not barred by law or Limitation. The office objection is accordingly overruled. Suit be admitted by the office in accordance with law". [Under-lining and emphasis added]. 14. Significantly, Suit No,'Nil' of 2005 was not only restored to its 'ORIGINAL POSITION' on 7-5-2007 but 'OFFICE OBJECTION', was also over-ruled on 22-5-2007 i,e, without service of any notice on the DEFENDANT in terms of orders passed by the court. Upon admission of the suit, thereafter, it was allotted Suit No,643 of 2007. [Murtaza Ali v. Sabir Ali Bangash]. 15. There is no order for 'ISSUANCE OF SUMMONS' to the defendant after 'admission of the suit' either by court or by Addl. Registrar [O.S.], however, per diary sheet of Addl. Registrar [O.S.] dated 18-9- 2007, summons retuned served upon the defendant. Per the aforementioned diary of Addl. Registrar [O.S.], the defendant, was given four weeks' time for filing his 'written statement'. According to the diary sheet of Addl. Registrar [O.S.] dated 15-11-2007, no 'written statement' was filed by the defendant since, 18-9-2007. As such, the case was fixed in court for 'EX-PARTE ORDER' on 10-12-2007. 16. On 10-12-2007, when the suit, for the first time after its registration, came-up before the court, the following order was passed:- "10-12-2007 None present ' As per bailiff report summons have been served on 10-9-2007 but none appeared. To meet the ends of justice notice be repeated through bailiff, courier service and through pasting as well on the outer wall of the premises." [Underlining is mine]. 17. Per diary sheet of Addl. Registrar [O.S.] dated 11-1-2008 summons issued for 20-12-2007, per bailiff report dated 17-12-2008, was pasted on the 'outer wall' of the defendant. The relevant diary of Addl. Registrar [O.S] dated 11-1-2008 reads as follows:-- "11-1-2008 As per CI order dated 10/ 12/ 07, summons issued to defendant through pasting and courier. The bailiff has pasted the summons on the outer door of defendant. [Underlining is mine]. Let matter be placed in court for ex pane order on 28/1/08 Adj to 15/2/08." 18. Importantly, the COURIER RECEIPT' does not bear/mention ,the address of the defendant. So also, the 'BAILIFF REPORT' of 17-12-2008 is short of the requisites as prescribed under Rules 141, 143 and 144 of the Sindh Court Rules [O.S. Without issuing and/or serving summons strictly in accordance with law/rules and 'WITHOUT HOLDING THE SERVICE HELD GOOD UPON THE DEFENDANT', 'ex parte order' nonetheless was passed. The 'ex parte' order of 4-2-2008 being relevant is reproduced herein below:-- "4-2-2008 None present for the defendant Mr. Badrul Alam, adv. Called absent. Mr. Murtaza All the plaintiff is present in person. Office has submitted report that no written statement has been filed by the defendant despite of service held good. The suit to proceed ex perte. The plaintiff is directed to file affidavit in ex parte proof. Adjourned to a date in office." [Underlining is mine]. 19. From the record, it is evident that 'AFFIDAVIT-IN-EXPARTE PROOF' in compliance with order dated 4-2-2008 was filed by the plaintiff on 21-4-2008. On 30-4-2012, when finally, the case came-up
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before the court, then WITHOUT RECORDING THE 'EXAMINATION-INCHIEF' of the plaintiff, arguments were straight away heard and the case was reserved for orders. 20. On 8-7-2008, the judgment was announced and the plaintiffs suit was 'DECREED AS PRAYED'. The operative part of the judgment passed on 30-4-2008 [without recording any examination- inchief/evidence of the plaintiff and/or exhibiting of any documents], reads as follow:-- "In view of the original documents produced by the plaintiff along with his affidavit-in-ex parte proof the plaintiff is entitled for the relief claimed. In absence of any rebuttal, the case of the plaintiff has altogether remained unshaken and un-rebutted. In the given circumstances, there is no other alternate but to accept the contents made by the plaintiff in his plaint. Accordingly, his suit is decreed as prayed." [Underlining and emphasis supplied]. 21. The 'JUDGMENT of 30-4-2008' was followed by 'decree of 9-8-2008'. Upon passing of the DECREE, EXECUTION APPLICATION BEARING NO.39 OF 2011 (Murtaza Ali v. Sabir Ali Bangash] was filed on 7-2- 2011. The amount claimed per column No,9 of the Execution Application No,39 of 2007 is given as below:-- 9.Total AmountSpecific performance of the agreement dated 15-12-1998 [annexure 'A' to the plaint] and Rs,3,45,15,102 [till the date of filing of execution application. ALTERNATIVELY Refund of U.S. $ 1,16,900 or its equivalent in Pakistani currency and Rs,11,46,363 in case of non performance of the agreement dated 15-12-1998 and Rs,3,45,15,102 [till the date of filing of the execution application] 22. Needless to say, that the plaintiff's suit was 'DECREED AS PRAYED' [i,e, for all prayers including damages in the sum of Rs,28,000,000 and recurring damages @Rs,1,00,000 per month from the date of filing of the suit till refund of the amount]. 23. On 14-12-2011, when above-mentioned Ex. Apin 39 of 2007 (Murtaza Ali v. Sabir Ali Ban gash) came-up before the court then the following order as passed:-- "14-12-2011 Mr. Badar-ul-Alam, Advocate for decree-holder Mr. Fazalur Rahman, Advocate for judgment debtor Let learned counsel for the Decree Holder assist the Court as to how the decree is to be executed since the plaintiff's suit was decreed as prayed and the prayer clause, as presently relevant, sought either specific performance of the agreement dated 15-12-1998 or in the alternative a certain sum of money as therein specified. For this purpose adjourned to 17-1-2012." [Underlining is mine]. 24. Upon service of the notice of the Execution Application No,39 of 2007 [Murtaza Ali v. Sabir Ali Bangash], Syed Fazlur Rehman, Advocate filed his 'Vakalatnama' on behalf of defendantJudgment-Debtor [viz Sabir Ali Bangash], on 17-8-2011. The Ex. Apin, since, 2nd February, 2012 is coming up along with this suit. Upon getting knowledge of the 'ex parte judgment' and 'decree', the defendant immediately on 11-8-2011 filed the instant Application under Order IX, Rule 13 read with section 12(2), C.P.C. And Section 151, C.P.C. [C.M.A. No,9052 of 2011]. The Plaintiff-Decree- Holder [viz Murtaza Ali], in response thereto, filed his 'Counter Affidavit' whereby, the application for setting aside of 'ex-parte judgment' and 'decree' dated 30-4-2008 and 9-3-2008 respectively has been opposed., The above C.M.A. No,9052 of 2011 when came-up before me, I heard Syed Fazlur Rehman, learned counsel for defendant and Mr. Badrul Alam, learned counsel for plaintiff and with their valuable assistance also gone through the available record before me. 25. Mr. Syed Fazlur Rehman, learned counsel for defendant forcefully argued that the 'ex parte judgment' and 'decree' passed on 30-4-2008 and 9-8-2008 respectively in Suit No,643 of 2007 against the defendant having been obtained by 'misrepresentation', 'fraud' and 'concealment of
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facts'. According to the learned counsel, the defendant, to the knowledge of the Plaintiff-Decree Holder, had left his business place [viz. Bangash Chamber Trading Co., Kaka Street, Opp. KMC Workshop, Nishtar Road, Karachi] i,e, after dismissal of the suit for 'NON-PROSECUTION' on 9-10- 2006. Per 'OFFICE OBJECTION' the suit is barred under Article. 113 of the Limitation Act, 1908 [IX of 1908]. Article 113 of the Limitation Act, 1908 [IX of 1908], prescribes 03 years period for 'specific performance' of a contract. Per learned counsel, the contract in the case in hand is of 15-12-1998 as such the suit filed on 24-5-2005, on the face of it was/is hopelessly time-barred and as such is liable to be dismissed with costs. 26. No doubt, notice was issued to the defendant but per order dated 27-2-2006, it was served on the son of defendant. Of course, counsel was engaged but then immediately on 9-10-2006, the suit was dismissed for 'NON-PROSECUTION' when it was fixed for hearing of 'office objection'. The instant suit was filed on 24-8-2005 but was not admitted until 22-5-2007 due to the aforesaid 'OFFICE OBJECTION'. 27. Upon dismissal of the suit on 9-10-2006, the previous learned counsel for defendant, as it appears from the record, had filed C.M.A. No,2120/2007 [Application under Rule 50 SCCR (OS)], for withdrawal of his 'Vakalatnama'. The same was allowed on 7-5-2007 and office was directed to issue 'INTIMATION NOTICE' to the defendant directly. Notwithstanding, the order for 'ISSUANCE OF INTIMATION NOTICE' to the defendant, simultaneously, the Application for restoration of the suit to its 'ORIGINAL POSITION' bearing C.M.A. No,7881 of 2006, was also allowed, and conesquently, the suit dismissed for 'non-prosecution' on 9-10-2006, was restored to its 'ORIGINAL POSITION' on the same day i,e, 7-5-2007. 28. Not only this, per learned counsel, thereafter, on 22-5-2007, the OFFICE OBJECTION' regarding bar of the suit under Limitation Act, 1908 [IX of 1908] was also 'OVERRULED' and that too without service of 'NOTICE' on the defendant. The suit was thus ordered to be admitted in accordance with law. The RESTORATION' of the Suit No,'Nil' of 2005, on 7-5-2007 to its 'ORIGINAL POSITION and OVERRULING OF THE 'OFFICE OBJECTION' regarding bar of the suit under Article 113 of the Limitation Act, 1908 [IX of 1908] was thus done at the back of the defendant, of course, in absence of any service. Finally, on 4-2-2008 'EXPARTE ORDER' was passed against the defendant and that too without service of summons. 29. Per learned counsel, the Plaintiff [Decree Holder], was well aware about the defendant's abandonment of his business at the given address/mentioned in the title of suit but the plaintiff malafidely suppressed and/or avoided this material fact from this court with the obvious aim to obtain an ex parte order/ex parte decree from.This court through 'fraud', 'misrepresentation' and 'suppression of the true facts'. According to the learned counsel, the bailiff has put false, fabricated and forged signature on the summons issued for 18-9-2007. Per learned counsel, the defendant [Judgment Debtor] during the period of 9-5-2007 till 26-11-2007, was abroad. Nonetheless, when the matter came-up before the Court on 10-12-2007, the court, to meet the ends of justice, ordered notice [not summons] to the defendant through 'bailiff', 'courier service' and 'pasting' but the summonses were not issued and/or otherwise, service not effected on the defendant strictly in terms of order dated 10-12-2007. 30. On coming to know about the 'ex parte judgment' and 'decree' the defendant, per averments, rushed to this court. Indeed, after hectic efforts and going through the record of the proceedings, it was found, that the plaintiff by playing 'fraud' and 'misrepresentation' has malafidely obtained ex- parte 'judgment' and 'decree' against the defendant. Per record, the defendant was never served by any 'notice' and/or 'summons' of the suit muchless after dismissal of the Suit No,2 'Nil' of 2005 for 'NON-PROSECUTION' on 9-10-2006. Moreover, the defendant had no information/knowledge whatsoever about RESTORATION of the suit to its 'ORIGINAL POSITION i,e, for hearing of 'OFFICE
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OBJECTION'. The defendant's counsel after dismissal of the suit for 'NON-PROSECUTION' was not supposed to appear on behalf of the defendant. 31. In response, on 15-8-2013, the plaintiff filed a detailed 'Counter Affidavit' to the Application under Order IX Rule 13 r/w Section 12(2) r/w Section 151, C.P.C. [C.M.A. No,9052 of 2011], wherein the assertion made in the application, was denied as being false, incorrect, mala fide and based on concealment of facts. Besides, it was averred that application as framed and filed is barred by limitation a such merits no consideration. Per plaintiff, the application has been filed with a sole and malicious object to deprive the plaintiff from the fruit of 'ex parte' decree passed in his favour. No 'frauds and/or 'misrepresentation' as alleged has ever been committed by the plaintiff upon the court. 32. According to the plaintiffs counsel, the defendant had never left the business place or otherwise, handed over possession thereof to anybody else and/or otherwise, had left the country as alleged by the defendant. Further, it was urged that from the very beginning, the defendant adopted avoiding attitude/delaying tactics. Summonses/notices of the suit, no doubt, were issued to the defendant by all modes of service including registered post A/D. Courier and publication in 'daily Jang' dated of 11-3-2006. Upon filing the application for restoration of the suit [C.M.A. No,7881 of 2006], notice was also issued to the defendant through bailiff. Even after restoration of the suit on 7-5-2007, per Mr. Badrul Alam, learned counsel for the plaintiff, intimation notice regarding 'OFFICE OBJECTION' pertaining to bar of the suit under Article 113 of the Limitation Act, 1908 (IX of 1908) was also issued for 22-5-2007 but the defendant intentionally did not appear as such the 'OFFICE OBJECTION' was overruled on 22-5-2007. 33. According to Mr. Badrul Alam, learned counsel for the plaintiff, the defendant was served with the summons and had thus knowledge of the pending proceedings. Pre learned counsel, it is incorrect to say, that on 10-9-2007, the defendant was not available in the country. Per plaintiffs stand the copies of the pages of PASSPORT of the defendant and the 'CERTIFICATE of Karachi Timber Merchant's Group,' filed along with the application [C.M.A. No,9052 of 2011] are false, manipulated. Rather it has been maliciously got prepared for the specific purpose of the application under reply. Per learned counsel, the signature of the defendant on the Notice issued for 18th September, 2007, PER BAILIFF REPORT of 11-10-2007 is not bogus and/or forged. Mr. Badrul Alam further contended that in absence of any 'affidavit-in-rejoinder', the contents of 'Counter Affidavit' be deemed and treated as true and correct as the same have gone un-rebutted/un-challenged. 34. Mr. Badrul Alam, learned counsel for the Plaintiff-Decree Holder vehemently argued that the 'EX- PARTE JUDGMENT' AND 'DECREE' passed on 30-4-2008 and 9-8-2008 respectively, in Suit No,643 of 2007 [Murtaza Ali v. Sabir Ali Bangash] are valid, proper and have been…
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