Law: Civil Procedure Code (V of 1908)

Section:

P L D 1995 Peshawar 53   First Appeal from Order 'No.3 of 1994, decided on 19th January, 1995. Civil Procedure Code (V of 1908)--- ----O. IX, R. 13---Ex parte decree---Setting aside of---Remedies---Defendant for setting aside ex parte decree can apply under O.IX, R.13, C.P.C.; invoke review jurisdiction of Trial Court for setting aside the same under S.114 and O.XLVII, R.1, C.P.C. and challenge validity thereof, on merits. Mst. Afzal Begum and others v. Y.M.CA. through its General Secretary PLD 1979 SC 18; Col. Atta-ur-Rehman v. Ahmad Yar Khan and 3 others PLD 1980 Lah. 181; Fareed Khan v. Gulzar Khan and others PLD 1985 SC (AJ&K) 74; S. Irshad Hussain and another v. Aziz Ullah Khan and another 1987 SCMR 150 and Mir Abbas Khan and another v. Mrs. Dianat Fatima and 9 others 1989 MLD 3410 ref. Messers Rehman Weaving Factory (Regd.), Bahawalnagar v. Industrial Development Bank of Pakistan PLD 1981 SC 21; R.FA No. 18 of 1987; Kamran Co. and others v. Messrs Modern Motors and another PLD 1990 SC 713 and Mst. Hussain Jan and 8 others v. Muhammad Suleman through Legal Heirs and 16 others PLD 1994 Pesh. 95 ref. Civil Procedure Code (V of 1908)--- ----O. IX, R.13---Ex parte decree---Setting aside of---Essentials---Defendant for setting aside ex parte decree was required to satisfy the Court that summons were not duly served; or that he was prevented by any sufficient cause from appearing when suit was called for hearing---Where no such averment was made in application for setting aside ex parte decree, presumption would be that he had full knowledge about the date of hearing and that he had no good ground to show that his non-appearance on relevant date; when ex parte proceedings were ordered against him was not wilful or intentional or same was beyond his control---Onus heavily lay on defendant to satisfy the Court that there was sufficient cause by which he was prevented to appear in Court when suit was called for hearing---Such onus in the case was not discharged by defendants, therefore, no case for setting aside ex parte decree was made out. Civil Procedure Code (V of 1908)--- ----O. IX, R.13---Limitation Act (IX of 1908), Arts. 164 & 181---Setting…