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Writ Petition No. 3301 of 1981, decided on 20th February, 1982.

‑‑ O. XX, r. 16‑Suit for rendition of accounts‑Preliminary decree‑Parties to suit co‑sharers and dispute relating to entitlement of shares in produce of land‑Decision of trial Court to pass final decree without first passing preliminary decree‑Held, cannot be challenged in circum stances of case.

O. IX, r. 13‑Ex parte decree‑Setting aside of‑Restoration of suit within discretion of competent Court‑Sufficient cause for setting aside ex. parte decree not shown‑Rejection of application by trial Court‑Held, cannot be said to be without lawful authority in circum stances of case‑Constitution of Pakistan (1973), Art. 199.

Ch. Attaullah for Petitioners.

Muhammad Iqbal Chaudhary for Respondents.

Date of hearing : 20th February, 1982.

The respondent No. 1 filed a suit against the petitioners for rendition of accounts and the share of produce with regard to the land jointly owned by the petitioners and the respondent. Jamal Din respondent claimed a share of 356/2529. The petitioners filed a written statement but absented thereafter. The Tehsildar/Assistant Collector‑Jaranwala passed an ex parte decree on 13‑8‑1979 holding that according to the Schedule of Average produce, produced in evidence, the land owners' share came to Rs. 69,927.30 and out of which the share of the respondent Jamal Din came to Rs. 4407.58. He, therefore, passed a decree of Rs. 4407.58 in favour of Jamal Din respondent and directed that this may be recovered as arrears of rent. The petitioners applied for setting aside of the ex parte decree on 9‑12‑1979 but the applica tion was rejected on 28‑1‑1980. The petitioners then filed an appeal against the decree of 13‑8‑1979 but it was dismissed by the Collector on 29‑3‑1980. The Additional Commissioner dismissed the revision on 17‑5‑1981 and the second revision was dismissed by the Board of Revenue on 7‑6‑1931. The petitioners have now challenged the orders of the Revenue Courts on the ground that it was incumbent upon the trial Court to pass a preliminary decree under Order XX, rule 16 of the C. P. C. and that he was not competent to pass a final decree without first passing a preliminary decree.

2. It is true that where it is necessary that accounts should be taken in w order to ascertain the amount of money due to or from any party, the Court is bound to pass a preliminary decree directing that such accounts be taken as' it thinks fit before passing a final decree. But in the present case it appears flat the trial Court did not find it necessary that accounts be taken. This is so, because it is an admitted position that the petitioners and the respondent are co‑sharers, in the property and that Jamal Din respondent was not cultivating the land and that Jamal Din was entitled to a share of the produce. It is also an admitted position that Jamal Din's share came to 356/5629. The only effort required of the trial Court, therefore, was to apply the formula laid down in the Schedule of average produce before working out the share's which Jamal Din respondent was entitled to. The decision of the trial Court, therefore, to pass a final decree without first passing a preliminary decree cannot be questioned.

3. An ex parte decree was passed against the petitioners. They were not able to show sufficient cause for setting it aside and the trial Court and subsequently the appellate Court held so. Whether or not to restore the suit was within the discretion of the competent Court and it cannot be said that the rejection of the application for setting aside the ex parte decree was without lawful authority.

4. In view of the above considerations, I find no force in this writ petition. It is dismissed with costs.

S. Q. Petition dismissed.

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