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Petitioner: NAZIR AHMAD VS Respondent: HIDAYAT ALI And Other
Court Name: Supreme Court of Pakistan Judge(s): Aslam Riaz Hussain, Saad Saood Jan, S. A. Nusrat Title: NAZIR AHMAD vs HIDAYAT ALI And Other Case No.: Civil Petition No. 999 of 1984 Civil Revision No. 2008 of 1980 Date of Judgment:1987-02-18 Reported As: 1987 SCMR 781 Result: Petition dismissed
Judgment ORDER S.A. NUSRAT, J.--In a suit brought by the respondents Nos. 1 and 2 against the petitioner an ex parte decree was passed by trial Court on 26-4-1978. The petitioner made an application under Order IX, Rule 13, C . P. C . For setting aside the ex parte decree which was dismissed by the trial Court as barred by time as well as on merits. The petitioner's appeal before the First Appellate Court also met the same fate. It was contended before the First Appellate Court that no ex parte decree could be passed on 26-4-1978 as the suit was itself not set down for hearing on the said date. This was found to be factually incorrect as the suit was fixed for hearing on 26-4-1978. It was next contended that the petitioner's counsel having pleaded no instructions on the said date the trial Court should not have proceeded ex parte. This contention too was examined by the learned High Court and rightly rejected on the ground that in such evantuality the petitioner remained unrepresented and the suit was rightly proceeded ex parte. The learned High Court, in the circumstances, refused to exercise jurisdiction under section 115, C.P.C. In view of the concurrent findings of fact recorded by the Courts below. This is not a fit case for the grant of leave and the petition is accordingly dismissed.