Law:

Section:

Constitution of Pakistan (1973)----Art. 185(3) read with Civil Procedure Code (V of 1908), O. IX, r. 13 Ex parse decree Setting aside of Substantial sum of money involved in suit Affidavit of defendant Appellant's counsel showing him to be suffering from ailment such as to partially impair his faculties and reduce his efficiency and alertness which accounted for his failure to notice case in cause list Held, such failure on facts of case cannot necessarily be attributed to negligence and carelessness of counsel Ex parte decree set aside subject to payment of Rs. ten thousand by ` appellant to opposing counsel. JUDGMENT SHAFIUR RAHMAN, J. The petitioners are the defendants against whom an ex parse decree for a sum of Rs. 91,420 has been passed by the High Court of Sind at Karachi. They seek leave to appeal against the judgment of the appellate Bench of that Court dated 20th September, 1982 whereby their appeal against the refusal to set aside the ex parte decree was dismissed. The plaintiff/respondent filed civil suit on 10th August, 1971 claiming recovery. of Rs. 91,420 from the petitioners on the basis of an oral contract for work done as a Labour Contractor. The petitioners appeared in response to the summons in, the suit, filed their written statement and contested the claim. On the pleadings of the parties five issues Were framed for trial on the original side of the High Court of Sind. After the framing of the issues in 1972 the case was listed for hearing on 19th of April, 1978. On that date neither the petitioner nor his counsel was present and hence the plaintiff's evidence was recorded ex parte against them. The case was adjourned to 26th April, 1978 for orders. An ex parte decree was passed on that date for the claim made by the plaintiff/respondent with 10 per cent. interest. On the 13th May 1978 the petitioner No. 1 submitted an application dated 11 5 1978 under Order IX, rule 13, C. P. C. for setting aside the ex parte decree on the ground that he had no notice of the hearing in suit. Subsequently an affidavit of Syed Ali Nazar, Advocate, dated 6th July, 1978 was filed in support of the application. In this affidavit the learned counsel for the…

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