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High Court Appeal No.70 of 1984, decided on 8th September, 1987.
---O.IX, R.13 & O.XVII, R.1--Ex parte decree--Setting aide of- Advocate for defendant, on date fixed for evidence of parties requesting for adjournment on ground that he had received intimation about expiry of defendant's father but request declined and ex parte decree passed--Nothing on record available to indicate that factually the defendant's father had not expired--Ground urged for adjournment, held, was sufficient and, therefore, there was, no justification to pass an ex parte decree--Judgment and decree set aside except against one of defendants who, 'though served, was not represented before High Court.
Mian Abdul Majeed for Appellant.
S.Izhar Haider Rizvi for Respondents.
Date of hearing: 8th September, 1987.
.--This High Court Appeal is directed against an order dated 26-4-1984 filed by the present appellant who was defendant No.1 in Suit No.240. of 1970 whereby a learned Single Judge of this Court dismissed the appellant /defendant No. l's application under Order IX, Rule 13 C.P.C. for setting aside the ex parte decree passed against him and against the other defendants on 19-2-1978.
2. We have gone through the order under appeal end we find that the case was adjourned on 22-1-1978 to 19-2-1978 for the evidence for the parties at the request of Advocate for the appellant/ defendant No.1. On the latter date the Advocate for the appellant requested for adjournment on the ground that he had received a telegram from the appellant intimating about the expiry of his father but the above request was declined and the ex parte decree was passed. There is nothing on record to indicate that factually the appellant's father had not expired. We are inclined to hold that if the learned Single Judge was not satisfied with the above factual aspect, he could have asked for the production of death certificate from defendant No.1 or other document which might have satisfied him. Even at this stage the learned counsel for the respondent No.1 plaintiff is not in a position to refute the correctness of the above statement as to the death of the father of the appellant. The ground urged for adjournment, in our view, was sufficient and therefore there was no justification to pass an ex parte decree. The decree was passed with the consent of defendant No.2 who is not represented before us though has been served. We would therefore allow the above appeal and set aside the above judgment/decree except against respondent No. 2 who was defendant No. 2 in the suit. However there will be no order as to costs.
S.Q./A-178/K Appeal allowed.
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