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Civil Petition for Special Leave to Appeal No. 202 of 1967, decided on 2nd October 1967.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 15th March 1967, in Civil Revision No. 465 of 1954).
, O. IX, r. 13 Ex parte decree passed, without any evidence being recorded, merely on ground that defendants were absent‑Decree being based opt no evidence of no value in law.
Abdur Rasheed, Senior Advocate (Mian Abdul 1laque, Advocate Supreme Court with him) instructed by Abdul Karim, Attorney for Petitioner.
Nemo for Respondents.
Date of hearing : 2nd October 1967.
This is a petition for special leave to appeal by Sheikh Inayatullah who was plaintiff in a suit for rendition of accounts against the respondents. It appears that ex parte proceedings were ordered against Abbas Ahmad Khan, the first respondent, in this case, by the trial Judge an 7th April 1962. Later, Faiz Mohammad, defendant, was also impleaded at the instance of the plaintiff and summons were issued to him. There were in all three defendants in the case. On the 8th of November 1962 the plaintiff gave up the first defendant, Mohammad Azam. The learned trial Judge then proceeded to pass an ex parte decree against the second and third defendants who are respondents before us.
On 3rd December 1962 one of the respondents filed an application for setting aside the ex parse order dated 15‑2‑1963. This petition was dismissed by the trial Judge and an appeal against that order failed before the District Judge. In revision however, the High Court set aside that order as well as the preliminary decree passed by the trial Judge and remanded the ease to it with the direction that it shall proceed from the stage of recording evidence of the parties in the suit. This is a petition by Shaikh Inayatullah for special leave to appeal from that order of the High Court.
We have heard Mr. Abdur Rashid in support of the petition. It appears from the High Court .order itself that no evidence in the case has yet been recorded. Copies of the various orders of the trial Judge which have been placed on the file also appear indicate ex parte decree was passed against respondents without any evidence being recorded, merely on the ground, that the respondents were absent. This preliminary decree therefore, being based on no evidence, has no value in law. This is a grave defect in the case of the petitioner who wants that preliminary decree to be preserved intact. We do not think this is a fit case for interference byway of special leave to appeal and dismiss the petition.
Leave refused.
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