Rana KARAMAT vs FARHAN HAIDER O — 2024 CLC 563 LAHORE-HIGH-COURT-LAHORE

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Rana KARAMAT VS FARHAN HAIDER O. IX, R. 7---Limitation Act (IX of 1908), Art. 181---Ex-parte proceeding, setting aside of---Limitation---Respondents instituted suit for declaration with permanent injunction against the petitioner, claiming ownership of two plots---Petitioner filed written statement wherein facts were controverted and counter legal and factual objections were raised---At the stage when the suit was fixed for evidence of respondents the petitioner was proceeded against ex-parte on 17.10.2019 and the case was adjourned for ex-parte statement and proof of respondents---Petitioner moved an application dated 13.02.2020 for setting aside ex parte proceedings, which was dismissed being time barred---Petitioner filed civil revision before Appellant Court, which too was dismissed---Validity---As regarding "sufficient reasons" for setting aside of the ex parte proceedings order, the courts below rightly observed that the petitioner did not prove the existence of any "good cause" to set aside the ex parte proceeding order. Plea taken was that the petitioner was seriously indisposed and could not appear in court on the fixed date---In law the petitioner was supposed to explain his own non-appearance as also the non-appearance of his counsel who used to represent him in the suit---If the petitioner was indisposed, his counsel could have appeared in the court and informed about the illness of petitioner---No explanation was given for the non-appearance of counsel, nor any medical certificate was produced to support the plea of illness or to prove the time during which he allegedly remained indisposed---Courts below had rightly observed that no "sufficient ground" was made out for setting aside the ex parte order---There was another aspect of the matter which was overlooked by the trial court as well the revisional Court---It was not a case in which an ex parte decree was passed against the petitioner; rather it was an instance in which ex parte proceedings order simpliciter had been made and the petitioner joined the proceedings at the stage of evidence by filing an application for setting aside of ex parte proceedings order against him---It has been consistently ruled that in case the defendant is proceeded against ex parte he/she cannot be deemed to be a dead person for future proceedings and in fact he/she can appear and join the proceedings from the stage at which he/she appeared in the suit---In case he/she does not apply for setting aside of ex parte proceeding order or if the ex parte proceeding order is not set aside, still she can join the proceedings from the stage of his/her appearance and if the case is at evidence stage, he/she could cross-examine the witnesses and produce own evidence in rebuttal---In the instant case it appeared that written statement had already come on record, the case was set up for respondents' evidence at which stage the petitioner was proceeded against ex parte and the case was adjourned for the ex parte evidence of respondents---It had not been argued or shown that any ex parte evidence was recorded in the absence of the petitioner and if it was so the petitioner having joined the proceedings, might cross-examine the witnesses---In the given circumstances, the petitioner would not be entitled to get the proceedings which were recorded in his absence set aside as he could not show any "sufficient cause"; but he would be entitled to join the proceedings from the stage he had appeared in the suit for setting aside of ex parte proceedings order and shall be entitled to cross-examine the witnesses of the opposite side if their statements had not been recorded by then and would also be entitled to produce his own evidence in defene---Petition was allowed in the above terms.

Rana KARAMAT vs FARHAN HAIDER O — 2024 CLC 563 LAHORE-HIGH-COURT-LAHORE

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