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Civil Petition for Special Leave to Appeal No. K‑195 of 1978, decided on 7th August, 1979.
(On appeal from the judgment and order of the Sind High Court dated 16‑9‑1978 in Execution Application No. 26 of 1970).
----S. 151 read with Constitution of Pakistan (1973), Art. 185(3) Execution of decree‑Dismissal‑Restoration‑Decree‑holder's aver ment of its case having not been shown in High Court's cause list for date when its application dismissed for default, false and dishonest Application for restoration ought not have been allowed in circum stances‑High Court's view although not correct but order passed, held, not so perverse as to be fit for grant of special leave.‑[Decree].
Muzaffar Hassan, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing : 7th August, 1979..
.‑The respondent had obtained a decree against the petitioner on the original side of the High Court of Sind. Therefore, it had filed an execution application which was dismissed for default on 3‑5‑1977. On 23‑5‑1977, the respondent filed an application for the restoration of its execution application and the ground on which this application was pressed was that the case had not been shown in the cause list of the High Court for the 3rd of May; 1977. The application was opposed by the petitioner on the ground that it was being pressed on a false plea, and the position taken by the petitioner was correct. The averments of the respondent that its case had not been shown in the High Court's cause list for the 3rd of May, 1977, was false and dishonest averment. Therefore, it is somewhat surprising that the learned Judge, who heard this application of the respondent allowed it by his order dated 16‑9‑1978. Hence this petition for leave.
Mr. Muzaffar Hassan vehemently criticised the impugned order and relied on this Court's judgments in Zulfiqar Ali v. Lal Din and another (1974 S C M R 162) and in Muhammad Munawar v. Ch. Khurshid Alam (1978 S C M R 266). Both the authorities cited support learned counsel in his contention that the view taken by the learned Judge in the impugned order was not correct, and we are constrained to observe that it would have been better if the learned Judge had dismissed the respondent's application of 23rd May, 1977.
However, the question of restoring the respondent's execution application was within the discretion of the High Court. And, although we would repeat that the view taken by the learned Judge was not the correct view, it cannot be said that the order is an order so perverse that we should grant special leave against it.
Mr. Muzaffar Hassan submitted that his prayer for the grant of special leave was supported by the two pronouncements of this Court to which we have referred. But, in both the authorities cited, this Court had refused to interfere with the exercise of discretion by the High Court against the petitioner. As, in the instant case, the High Court has exercised discretion in the petitioner's favour, the judgments cited are distinguishable on the facts.
In the circumstances discussed, we would refrain from interfering with the discretion exercised by the High Court in the respondent's favour, and, therefore, on this ground only dismiss the petition.
Petition dismissed.
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