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Civil Revision No. 279-D of 1983, decided on 12th October, 1983.

(a) Civil Procedure Code (V of 1908)--

---O. IX, r. 9--Ex parte order, setting aside of--Petitioner proceeded ex parte due to his non-appearance as well as of his counsel Petitioner applying for setting aside ex parte order affixing stamp on application of the date on which he was proceeded ex parte--Such application dismissed on ground that stamp on application of that date proved presence of petitioner in Court premises--Held, mere purchase of stamp of a date would not warrant the conclusion that petitioner was roaming about in Court premises on such date when he was stated to be unwell and sick--Ex parte order being based on wrong assumption, was set aside, in circumstances.

(b) Civil Procedure Code (V of 1908)--

---O. IX, r. 9 and S. 115--Revision--Courts below misdirected themselves by acting on wrong assumptions and excluding from consideration material which they were bound to consider--Judgments and decrees set aside and case sent back to trial Court for deciding application for setting aside ex parte order after giving reasonable opportunity to both sides.

S. M. Naseem for Petitioner.

Rashid Masood Gangohi for Respondents.

Date of hearing: 12th October, 1983.

This revision petition has been filed against the order of learned Additional District Judge, Lahore whereby he upholding the order of learned Civil Judge refused to set aside the ex parte order as well as ex parte decree.

2. The brief facts of the case are that a suit was filed by respondents-plaintiffs on the allegation that their shop had been encroached upon by the petitioner-defendant and the same was in express violation of transfer made in their favour by the Settlement Authorities. The matter was contested and written statement was filed by the petitioner-defendant. Thereafter, the case was fixed for 6-3-1982 for the purpose of recording the evidence of the petitioner-defendant after framing the issue whether the measurement of the shop in dispute was not correct. On this date neither the petitioner nor his learned counsel appeared and consequently the learned Civil Judge ordered ex parte proceedings against defendant as well as closed his evidence. The petitioner on the following day i.e. 7-3-1982 filed an application for setting aside the ex parte order. This application was dismissed on 18-5-1982. Thereupon, an application for review under sections 114 and 152 of the Civil Procedure Code was filed on 16-6-1982 and that too was dismissed on the following day and consequently an ex parte decree in favour of the opposite side was granted on 23-6-1982. The petitioner went in appeal which met failure on 23-1-1983. These proceedings and orders are now being assailed through this revision petition.

3. I have gone through the order of the learned Additional District Judge in this case. This learned Court has given importance to the fact that the application, dated 7-3-1982- had the stamp affixed bearing the date 6-3-1982. From this fact, he drew the inference that proved the presence of the petitioner in the Court premises on 6-3-1982. 1 have strained my mind sufficiently to justify the inference and conclusion reached by the learned Additional District Judge, but I am sorry to say that this inference cannot reasonably be drawn from the facts stated by him. There was an application, dated 7-3-1982 given by the the petitioner which was duly verified by the learned counsel in whose para. 4 it was stated that the stamp had been purchased by the learned counsel. Be that as it may, the fact remains that the mere purchase of ticket on 6-3-1982 does not warrant the conclusion arrived at by the learned Additional District Judge, namely, that the petitioner was roaming about in the Court premises on 6-3-1982 when statedly he was unwell and sick. That being the position, his order being based on wrong assumption would stand vitiated.

4. The order of the learned Civil Judge exhibits no better approach because he too has attached undue weight to the date of the purchase of Rs.2 stamp on 6-3-1982. The explanation given by the petitioner defendant in his application that the stamp was purchased by the learned counsel has totally been kept out of consideration. At any rate, the mere purchase of ticket on 6-3-1982 was by itself wholly insufficient to warrant the inference are drawn by the learned Civil Judge in this case. The result is that the orders of both the Courts below stand vitiated on account of wholly unsustainable and conjectural inference drawn by them.

5. As 1 have already pointed out that the two Courts below misdirected themselves by acting on wrong assumptions and excluded from consideration the material which they were hound to consider, I would after setting aside the impugned orders, judgments and decrees send the case back to the learned Civil Judge for deciding the matter from the stage of application, dated 7-3-1982 after giving reasonable opportunity to both the sides to substantiate their plea or rebut the same.

This revision petition is accordingly accepted. There shall, however, be no order as to costs.

M. A. K.

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