Petitioners/defendants No.2 to 7 have directed this civil revision against order dated 12.02.2020 passed from the court of Mrs. Sidra Gull learned Civil Judge 2nd Class Depalpur, through which their application for setting aside exparte proceedings order dated 22.05.2019 was dismissed.
2 Learned counsel for the petitioners/defendants No.2 to 7 submitted that case was fixed for cross examination on PWs for 22.05.2019 before learned trial court when petitioner No.1 could not appear due to his illness while their counsel due to his engagement in other cases. That petitioner No.1 was conducting all proceedings in this case on behalf of remaining petitioners being their real brother. That valuable rights of parties are involved in this case. That learned trial court dismissed their application in haste and without assigning any cogent reason. That averments of their application could have been better appreciated after recording of evidence. That impugned order was passed in haste which has caused serious prejudice to their rights qua disputed property. That learned trial court failed to exercise lawful jurisdiction vested in it.
3 On the other hand, learned counsel for respondent No.1/ plaintiff supported impugned order, contested this civil revision and prayed for its dismissal. He submitted that petitioners were already proceeded against exparte and application for setting aside earlier order was accepted in the light of no objection of his learned counsel. However petitioners once again willfully absented and filed this application after passing of six months without assigning any sufficient cause for their non-appearance as well as inordinate delay in filing of this application. That all the petitioners have independently signed Waqalat Nama in favour of their counsel without authorizing petitioner No.1 to conduct proceedings on behalf of petitioners No.2 to 6. That petitioners are using delaying tactics with malafide. Learned counsel for respondent No.1 in support of his above arguments placed reliance on cases report as:-
“PLD 2015 Peshawar 59, 1998 CLJ- 405, NLR 1993 CLJ 765 (Karachi), and NLR 1992 Civil 425.”
4 Arguments advanced by learned counsel for the parties have been heard and record perused.
5 Precisely respondent No.1/plaintiff has filed suit for declaration with permanent injunction against petitioners in which the latter appeared, submitted their contesting written statement after which learned trial court framed issues. The case was fixed for cross examination on PWs when petitioners were proceeded against exparte on 22.05.2019 and then they filed subject application for setting aside said exparte proceeding order by stating that petitioner no.1 as real brother was pursuing this case on behalf of remaining petitioners No.2 to 6 and on date fixed he could not appear in court due to his illness while their counsel was engaged in other cases. Admittedly petitioner No.1 is not having any general or special power of attorney of petitioners No.2 to 6 in his favour. But it is a general practice that one of the plaintiffs or defendants especially when they are real brothers/sisters and having no conflicting interest pursue case on behalf of all remaining. Subject application was moved after about 06-months. However it is also noted that case was fixed for cross examination on PWs when petitioners/defendants were proceeded against exparte. Valuable rights of parties are involved in this case. Lis between parties can be effectively and finally decided on merits after recording evidence of both parties. No one should be knocked out on mere technicalities. Even otherwise a party proceeded against exparte in a suit can join its proceedings at any stage and can even cross examine witnesses of opposite party. After considering all these legal points petitioners are found entitled to join proceedings before learned trial court. Impugned order was passed in oblivion of said settled legal principles. Facts of above cases referred by learned counsel for respondent No.1 are quite distinguishable from above proposition as they relate to exparte Judgment/decree. As a consequence of above discussion, this civil revision is accepted, impugned order is set aside and application of petitioners for setting aside exparte proceedings order dated 22.05.2019 is accepted subject to cost of Rs.3000/-. Copy of this judgment be sent to learned trial court and file of this civil revision be consigned to the record room after its necessary completion within stipulated period.