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Civil Revision Application No.326 of. 1984, decided on 19th August,1987.'

---O.IX, R.13--Eh parte decree, setting aside of Defendant respondent first appeared in suit after service of summons but remained absent thereafter with result that ex parte order was passed against him and when he failed to appear again, ex parte decree was passed against him--Respondent in his affidavit, submitted with his application to set aside ex parte decree, had stated that his counsel had remained ill and had gone abroad twice and when he came back he had again fallen ill and attended emergency department of Medicare Clinic many times--Trial Judge coming to conclusion that respondent's attorney was right in the country on different dates of hearing before passing of ex parte decree but he deliberately remained absent from Court--In spite of such finding by Court, Trial Judge proceeded to set aside ex parte decree on payment of cost with remarks that he was doing so in interest of justice--Facts showing case of gross negligence on part of respondent contesting suit--Respondent did not care to file written statement for nine months from date of service of summons on him--Respondent even after passing of ex parte order never appeared in Court nor took steps to get order set aside--Medical Certificate submitted by his counsel only showing that he was attended by Resident Medical Officer in Emergency Department as he had complaint of acute sciatic pain rediating towards his left leg and not showing any disease of nature which had completely paralysed or prevented him from attending to his other normal-pursuits of life--No certificate of illness was produced to substantiate allegation of illness and treatment abroad--Fact that he travelled twice to abroad during this period clearly indicated that he was in a position to follow normal pursuits of life--Held, there was hardly any justification for setting aside ex parte decree by Trial Court in circumstances.

---O.IX, R.13--Ex parte decree, setting aside of--Trial Court setting aside ex parte decree against respondent on payment of cost although there existed no justification for same because respondent had been grossly negligent in his conduct in attending Court on dates of hearing--Perusal of plaint in suit and material produced in support of claim before Trial Court in form of ex parte proof showing that in suit plaintiff had claimed a large amount by way of mesne profits and Trial Court while decreeing suit for mesne profit did not apply his. mind to claim in suit in light of documentary evidence which was available before him--Counsel for respondent offering that his client was prepared to deposit a reasonable amount towards mesne profits claimed in suit provided his client was afforded an opportunity of contesting claim of plaintiff in suit on merits--Offer accepted by High Court and a conditional order passed for setting aside ex parte decree modifying order of Trial Court to the extent that ex parte decree passed in suit by Trial Court shall be deemed to have been set aside if respondent deposited promised amount within one month with Nazir of Court and in case of his failure to do so, ex parte decree passed by Trial Court shall be maintained.

Muhammad Akbar for Applicant.

A. Munib Khan for Respondents.

Date of hearing: 19th August, 1987.

This Revision application is filed by the plaintiff /application against the order of the learned 6th Senior Civil Judge, Karachi dated 16-10-1984 whereby the learned Judge accepted the application under Order IX, Rule 13 C . P . C . read with section 151 C . P . C . filed by the defendant-respondent, set aside the ex parte decree and allowed him to file Written statement. Learned counsel for the applicant contends that the order setting aside the ex parte decree is wholly an irregular and illegal order as the respondent-defendant failed to show sufficient cause for setting aside the ex parte decree. It is an admitted position that the defendant-respondent appeared in the suit after service of the summons on 15th March, 1983, but thereafter he remained absent with the result the ex parte order was passed against him on 31st August, 1983. Even after passing of the ex parte order he did not appear in the case with the result the ex parte decree was also passed against him on 20th October 1983. The application for setting aside ex parte decree under Order IX, Rule 13 C.P.C. was filed on 19-11-1983 which was allowed by the learned trial Court on 16-10-1984. The contention raised in the application under Order IX, Rule 13 C.P.C. filed by the respondent-defendant before the trial Court was that the attorney of the defendant returned from abroad on 30th March, 1983 but he immediately fell ill. It is further stated that he again left for abroad on 13th June, 1983 but could not return until 9th July, 1983. It is further stated in the affidavit that even on return from abroad one 9th July, 1983 he was not completely recovered and was attended in the Emergency Department of Medicare Clinic on several dates. The applicant plaintiff filed counter-affidavit in reply to the application under Order IX, Rule 13 C.P.C. filed by the defendant-respondent in which he denied .the allegation that the defendant's attorney was ill or had left for treatment abroad. Alongwith the counter-affidavit number of documents were filed to show that for all this period when the defendant's attorney contended that he was away from the country he was very much present in Karachi and sent letters to the applicant/ plaintiff. Learned trial Judge in his order also reached the conclusion that the defendant's attorney was in Karachi on different dates of hearing before passing of the ex parte judgment and ex parte decree but he deliberately remained absent from the Court. In spite of the above finding by him the learned trial Judge proceeded to set aside the ex parte decree on payment of costs of Rs.250 and it was stated by the learned Judge in his order that he was doing so in the interest of justice. From i the facts stated above it is absolutely clear that it was a case of gross negligence on the part of respondent in contesting the case. In fact for about 9 months from the date of the service of the summons on him he did not care to file written statement in the case. Even after passing of the ex parte order by the Court on 31st August, 1983 he neither appeared in Court nor took the steps to get that order set aside. Mr. Munib Ahmed, learned counsel for the respondent contends that the defendant's attorney has filed medical certificate before the trial Court to show that he was ill during most of this period and therefore his absence from the Court was not deliberate but on account of the reasons which were beyond his control. The argument of the learned counsel has no force. The medical certificate submitted by the respondent alongwith his application for setting aside the ex parte decree only shows that he was attended by the Resident Medical Officer of Medicare Clinic on 13-8-1983, 11-9-1983 and 20-10-1983 in the Emergency Department as he had complaint of acute sciatic pain radiating towards his left leg. Firstly, the medical certificate does not show that the disease complained of by the defendant-respondent was of the nature which completely paralysed or prevented him from attending to his other normal pursuit of the life for the period from 13th August, 1983 to 19-11-1983. Apart from it the ex parte order in the case was passed much earlier to the date when he first attended the Medicare Clinic on 13-8-1983. The defendant's attorney in his affidavit filed in support of the application under Order IX, Rule 13 C.P.C. als6contended that he visited abroad in connection with treatment there but there is nothing on record in the form of Medical Certificate issued from abroad toy substantiate that allegation. The fact that the defendant's attorney' has travelled twice to abroad during this period clearly indicates that he was in a position to follow the normal pursuit of the life. In these circumstances there was hardly any justification or ground for setting aside of the ex parte decree by the learned trial Court.

However while going through the plaint in Suit No. 637/83 and the material produced in support of the claim before the learned trial Court in the form of ex parte proof I noticed that in the suit the plaintiff /applicant had claimed by way of mesne profits against the defendant a sum of Rs.4,800 per month for an area of 2,400 sq, ft. while under the lease the plaintiff /applicant was receiving rent of Rs.2,000 for the constructed area of 3,200 sq.ft. It appears that the learned Judge while decreeing the suit for mesne profit did not properly apply his mind to the claim in the suit in the light of documentary evidence which was available before him. In addition to it Mr.Munib Ahmed, learned counsel for the respondent also offered that his client is prepared to deposit a reasonable amount towards the mesne profits claimed in the suit provided his client is afforded an opportunity of contesting the claim of the plaintiff in the suit on merit. The above offer made by the learned counsel of the respondent has pursuaded me to pass conditional order for setting aside the decree in suit No.637/83. I accordingly modify the order of the learned trial Court to the extent that the ex parte decree passed in Suit No.637/83 shall be deemed to have been set aside, if the respondent deposited a sun of Rs.1,42,000 tentatively within one month from today towards the claim in suit either in cash or in the form of Khas Deposit Certificate: with the Nazir of the Court and he will be entitled to appear and defend the suit. However, if the respondent failed to deposit the above amount the decree passed earlier by the trial Court in the suit shall be maintained. In case the amount is deposited in cash it will be invested in Khas Deposit Certificates and if the amount is deposited in the form of Khas Deposit Certificates they shall remain deposited in suit until its final decision and shall be paid to such a party who is found entitled to it. There will be no order as to costs.

M.Y.H./M-278/K Order accordingly

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