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Civil Petition for Special Leave to Appeal Nos. 882, 943 and 944 of 1983, decided on 7th September, 1985.

(From the judgment of Lahore High Court, Lahore, dated 22‑5‑1983 passed in W.P. Nos. 2005, 2007 and 2006 of 1983, respectively).

‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), O.IX, r.6‑‑Ex part@ decree, setting aside of‑‑Trial Court set aside ex parte decree on grounds that notice was not served upon respondent and Advocate served with notice was not duly appointed by respondent‑‑Order impugned‑‑High Court declined to interfere in its discretionary writ jurisdiction, with findings of fact‑‑No justification having been made out for interference with such findings, leave to appeal refused.

Naveed Shahryar Khan, Advocate Supreme Court with Mahmood A. Qureshi, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 7th September, 1985.

‑Leave to appeal been sought in these three petitions from judgment, dated 22nd May, 1983; whereby the Lahore High Court dismissed three writ petitions filed by the petitioners; which had arisen out of orders passed by a learned Civil Judge setting aside ex parte decrees against the defendants/respondents in civil suits for perpetual injunctions filed by the present petitioners.

2. The brief facts strictly relevant for this order as stated by the learned counsel for the petitioners are that the suits were filed in April 1973. They were dismissed in 1974. The petitioners' first appeals were allowed and the cases were remanded on 3‑5‑1975, fixing the date before the trial Court as 17‑5‑1975 for appearance of the parties. Abdus Satter Chughtai, a learned Advocate filed memo. of appearance from the respondent side and cases were adjourned for some dates. In the meanwhile respondents filed F.A.Os. in the High Court bringing under challenge the orders of remand. These appeals were dismissed on 2‑1‑1976. Remand orders were upheld. When again the cases came up before the trial Court it ordered for issuance of notices to the parties as well as to their counsel. It is admitted by the learned counsel for the petitioners that despite the direction of the Court for issuance of the notices to the parties as well, service was effected only on the counsel of the petitioners and on said Advocate Mr. Abdus Satter Chughtai. There is nothing on the record that the respondents were made aware of these proceedings. On 21‑4‑1976 was holiday. On 22nd again Lawyers appeared. On 29‑4‑1976 petitioners' counsel was presenttext-align:justify; font-family:Arial, Helvetica, sans-serif;text-indent:.3in; was present from the respondent side. Ex parte proceedings were taken and ex parte decrees were passed on 28‑6‑1976. On 20th January, 1982 respondents filed applications for setting aside the ex parte decrees. They were allowed by the learned trial Court on the finding that Abdus Satter Chughtai was not duly appointed counsel of the respondents. And further that they themselves were never served with a notice which had been ordered by the Court to be issued to them. Revisions filed by the petitioners before the District Court were rejected. The petitioners sought relief in the High Court through Constitutional petitions. The same having been denied, they have now sought leave to appeal.

3. Learned counsel has contended that the learned trial Court set aside the ex parte decrees passed in favour of the petitioners without permitting the petitioners to lead evidence regarding the non‑appearance of the respondents the cited case law in this behalf; that Abdus Satter Chughtai was appointed by the respondents as their counsel, therefore, his service and presence should have been regarded as that of the respondents; that the respondents failed to produce any evidence to show that they had no knowledge of the proceedings before the date of filing of the applications for setting aside ex parte decrees, nor they asserted so in their applications; and lastly, that even if there was a direction by the Court for issuance of notice to the lawyers as well as the parties, the non‑compliance thereof by the office of the Court in so far as the issuance of notice to the parties, including the respondents is concerned, it might amount to a misconduct on the part of the functionary of the Court's office. But it will not correspondingly help the respondents, the service on whom would be treated to have been completed by service on Abdus Satter Chughtai.

4. The question with regard to the framing of the issues and opportunity to lead evidence was raised before the first two learned Courts. As the controversy raised by both the parties was well‑known to them and as also to the Court without framing of the issues and further because the main evidence to be considered in the cases was available on the record of the Court, the contention raised from the petitioner side in this behalf has been repelled for good reasons. Even if there is some irregularity in the procedure, the learned Single Judge in the High Court treated the case as one of substantial justice and declined to interfere in the discretionary jurisdiction of the High Court. Refusal to exercise discretion thus does not suffer from any infirmity, legal or otherwise.

5. Essentially this is a case of findings of fact with regard to failure of service on the respondents despite the order of the Court for service on the lawyers as well as the parties; the finding that Abdus Sattar Chughtai was not duly constituted counsel of the respondents; the finding that substantial justice has been done by setting aside the ex parte decrees; and the absence of knowledge of the respondents regarding the ex parte decrees.

6. After hearing the learned counsel at some length, no justification has been made out for interference with these bindings in the peculiar circumstances of the case. Therefore, leave to appeal is refused in all these three cases.

M. I. Leave refused.

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