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Civil Petition for Special Leave to Appeal No. 260 of 1967, decided on 5th October 1967.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 1st May 1967, in Civil Revision No. 18 of 1962).
O. IX, r. 13‑Ex parte order passed due to mistakes committed by officials of Court‑Parties not to suffer Ex parte order, held, rightly set aside by Court.
Gul Muhammad Butt, Advocate Supreme Court instructed by Nasimul Amjad, Attorney for Petitioner.
Nemo for Respondents.
Date of hearing : 5th October 1967.
‑The petitioner seeks special leave to appeal from an order of a learned Single Judge of the High Court in a revision petition under section 115 of the Code of Civil Procedure, whereby the order of a Civil Judge setting aside an ex parte order in a reference under section 35 of the Land Acqui sition Act of 1893 was upheld.
It appears that the Land Acquisition Collector made a reference in May 1955, in respect of the acquisition of certain property in which Imam Din, Mehraj Din, Manzoor Hussain and some others were shown as parties. Notices were directed to be issued but on the date fixed the file was found to be without the paper; of the Collector. The completion of the record was, accordingly, ordered. Subsequently iii the presence of the Govern ment Pleader it was fixed for evidence on 21‑3‑1956. Evidence started on 19‑6‑1956. Up to this stage the Government Pleader was present on behalf of the Collector. Ultimately the Civil judge refused to interfere with the order of the Land Acquisition Collector.
In the meantime, however, the Collector on the 22nd of August 1956, forwarded a new reference in continuation of the previous reference made by him in 1955, presumably, because there had been a change of the site by a slight variation in the Khasra numbers and some of the owners had not come to terms with the authorities, although the parties remained the same. In this reference after notices had been directed to be issued the Civil Judge on the 5th of June 1956, ordered that the file should be put up on 15‑6‑1956 but the previous file was not put up. As a result of this error on the part of the Court's offices the presence of the learned counsel for the Collector, it appears, was not shown in the proceedings relating to the present petitioner, although he was shown as present in the proceedings relating to Manzoor Hussain.
There was, however, really one reference and not two references which were being dealt with by the Court, but the pro ceedings became separated by reason of the fact that both the proceedings were not put up together as ordered by the Court on 5‑6‑1956. As a result the proceedings relating to the present petitioner appear to have been disposed of ex parte against the Collector.
When the confusion was detected an application was made for setting aside the ex parte order under Order IX, rule 13 of ‑the Code of Civil Procedure. Objection was taken that this applica tion was barred by time, but the learned Civil Judge took the view that since there had been a mistake committed by officials of the Court the parties should not suffer on its account and set aside the ex parte order. It is against this order that the peti tioner moved the High Court in revision. The learned Single Judge also took the view that since the learned counsel for the Collector never absented himself in the connected reference in which Manzoor Hussain was a party it was clear that there had been some confusion in the minds of all concerned, as a result of non‑implementation of the order passed by the trial Court on the 5th of June 1956, for putting up both the references together. The ex parte order was, in the circumstances, patently illegal and made in irregular exercise of jurisdiction. Hence the trial Court correctly recalled its own illegal order.
We have heard the learned counsel appearing in support of this petition at some length and examined the various orders filed by him and we are satisfied that the Courts below acted upon sound legal principles in setting aside an ex parte order which had clearly been passed as a result of confusion created by the mis take of officials of the Court itself. No injustice has, however, resulted to the petitioner, for, the reference will now be heard in the presence of the Collector and other parties concerned. We see no reason, therefore, for granting special leave in such a case where justice has been substantially done. The petition is, accord ingly, dismissed.
Leave refused.
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