Pakistan Law Clinic

ADVISORS FOR PLAINTIFF

RAHEELA KHADIM
ASIM NAWAZ
ALI ABBAS
NAFAY MOHSIN
ZARMINA KHAN
ALEENA REHMAN KHAN
USAMA ZUBAIR
RIYASAT ALI
AHMED ABDUR REHMAN KHAN
NAZIA TUFAIL
UMAIR NADEEM
 Pakistan Law Clinic

Successors of A v D and E

Plaintiff

Index

Facts …………………………………………………….. 2
Grounds …………………………………………………..4
Delay of 1 year……………………………………………4
No explanation for absence……………………………….5
Malafide Intention……………………...…………………6
Doctrine of Laches………………………………………..7

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 Facts

1. The plaintiffs are the successors of Mr. A and the defendants are Mr. D and
Mr. E.

2. A purchased property from B in 1967 costing Rs. 50000.

3. Mutation No.1, revenue record and possession were delivered to A.

4. C, the nephew of Mr. B challenged the property on the basis of preemption

and the decree was passed in favour of C.

5. The sale was declared ineffective, void by the learned civil court. Mutation
2 was recorded in the favour of C.

6. A filed an appeal against the said decree and judgement. While this appeal
was pending, D and E, the real sons of B claimed that the property in
question was gifted to them by their real father B.

7. A decree was passed in favour of D and E and they were declared as

owners.

8. Mutation No. 3 was recorded and possession was transferred to D and E.

9. The appeal was finally decided in favour of A, however A had passed away
during the course of litigation. Successors of A instituted a suit for

 the cancellation of Mutation 2 and 3

 the restoration of Mutation 1
 alongwith the possession of suit property

10. The defendants D and E filed their written statement whereas Defendant
C was proceeded against ex parte.

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11.When the suit was called for hearing, only the plaintiffs appeared.
Defendants D and E were absent.

12. Due to their non-appearance they were proceeded against ex parte and the
plaintiffs were directed to produce their evidence.

13. A year had lapsed from the date of the ex parte proceedings.

14. Partial oral ex parte evidence was recorded in the suit by the plaintiffs.

15. The matter was adjourned for submission of further oral evidence and the
documentary evidence, if any; when on the said adjourned date the
defendants D and E filed an application for setting aside the ex parte order
passed almost a year ago.

16. Reasons given by defendant for non-appearance on the said date:

 The father in law of the defendant E was seriously sick and he had
to undergo a major surgery.

17. The defendants have also placed certain medical record with the
application for setting aside ex parte proceeding order.

18. Plaintiffs responded against the said application on the ground of

inordinate delay of almost one year.

19. The plaintiff is seeking rejection of the application given by the defendant
for the setting aside of the ex parte order on the grounds mentioned in the
latter part of the document.

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 Grounds

The below stated grounds are elaborating the fact that the defendants have had
several opportunities to put forth their issue to the court and had willfully or
grossly neglected to do so. The cause that they have given for non-appearance is
not ‘good cause’ for the purposes of O IX R.7 of the Code of Civil Procedure.

1. Delay of One Year

The application was filed after an inordinate delay of almost one year and
the case had been adjourned several times. The grounds given by the
defendants are not sufficient to prove that this delay is constituted by a
‘good cause’ as mentioned in O IX R. 7 of the Code of Civil Procedure.
The issue at hand is that even if the father in law of Defendant E was
undergoing surgery and Mr. E was engaged in this for as long as an entire
year, the absence of his brother is not reasonably justified.
Moreover, the absence of his counsel throughout the entire year is not
reasonably justified either.
Since the defendants have not been able to give explanation for each and
every day as held in the case law mentioned below, it is prayed that the
defendant’s application be rejected.

Case Law:

“The person seeking condonation of delay must explain delay of each and
every day to the satisfaction of the court and should also establish that
delay had been caused due to reasons beyond his control.”1

In another case, in view of the conduct of the defendant, had rightly

refused to exercise jurisdiction in his favour. Record showed that the
defendant official from the very beginning had never been interested in
offering any reasonable and serious opposition to plaintiff’s claim.
Defendant official and his counsel on many occasions had been found
absent by trial court without any lawful excuse. They had not availed the
opportunity to cross examine the plaintiff’s witness and had let their
deposition go unchallenged. Such attitude of the defendant was indicative
of collusive delinquency on his part and made clear that the defendant
has no doubt about the genuineness of the plaintiff’s claim. 2

The delay explained is only for the defendants and not for their counsel as
discussed further in the next point.

1
PLD 2003 SC 628 Sheikh Muhammad Saleem v Faiz Ahmad
2
2011 YLR 208 Town Municipal Administration v Frontier Submersible Eng and Electric Works

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 2. No explanation for absence of Defendant D or their counsel

The fact that both the defendants were busy in dealing with the patient
does not suffice as a reasonable justification to be ignoring the
proceedings for almost a year. Even if one of the defendants were
occupied, the other one could have appeared before the court.
Moreover, the fact that even the counsel failed to appear throughout for
the entire year without any legitimate explanation not only inclines a
person towards the belief that this was willful neglect, it also implies that
this was being done to further delay the proceedings.

Case Law:

“The petitioner in order to succeed in this application has explain

absence of all concerned, including his own and his counsel.”3

In another case, there were two lawyers and although one of them had
shown sufficient reasons for non-appearance, the other lawyer could not
and the court held that both were required to do so.4

The learned court as well as the respected revisional court observed that
the petitioner (defendant) has not been able to establish good/sufficient
reasons for his absence and to set aside the ex parte proceedings against
him. The petitioner before the trial court has not been able to establish
his case justifying the non-appearance of himself as well as his counsel in
the court.5

3
PLD 1995 Lah 81
4
1992 CLC 1255
5
2007 YLR 2702 Muhammad Azan v Muhammad Saroya and 4 others

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 3. Malafide Intention

Malafide intention of the defendant is evident from several actions:

 For one entire year, while the defendants were apparently occupied,
possession of the property was with Mr. D and Mr. E. This proves
the defendants’’ intention was not bona fide and malice is evident
due to their possession of the property.

Case Law:

“O IX Rule 7 is to be construed liberally to avoid hardship but

cannot be made a tool for condoning negligence and willful
defaults.”6

“Defendants were having knowledge of suit pending before the

trial court but they remained dormant for unreasonable time to
defend.” 7

 Throughout the year, the plaintiffs were deprived of the property in

question where they lost several opportunities to invest in the
property or deal with it in whatever way they sought fit hence
resulting in loss of chance.

This further indicates the presence of an ulterior motive which would again be to
delay the trial as the defendants have possession of the property. This is malicious
and is also coming at the expense of the plaintiffs as well as the court with
reference to the time spent on the case.

Case Law:

The purpose for passing an ex parte decree is to penalize a party which

deliberately avoids appearance either in person or through counsel with the
ulterior object to defeat or delay and or frustrate litigation is grossly negligent
or fails to appear without sufficient cause.8

4. Doctrine of Laches
6
1984 CLC 886
7
2016 YLR 1646 Muhammad Ismail and 3 others v Mst. Waheedan
8
2012 SCMR 540 Mansoor Akbar v Faz e Rab Pirzada

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 Based on the maxim “Equity aids the vigilant and not those who slumber
on their rights.” 9
Given that the defendants had been absent for the entire year and the fact
that the plaintiffs faced detriment, it would be unfair to accept the
application submitted by the defendant resulting in further costs for the
plaintiffs and would also mean that the previous time invested by them has
been wasted.

Case Law:

“Applicant has not given any plausible explanation for remaining slept
over the matter for one year nor has he explained how he came to know
of passing of decree.”
(Non-appearance of defendant for 1 year despite service by bailiff.)10
Please Note: The defendants in this case have failed to explain how they
came to know about the passing of the relevant order as well.

“Time and tide wait for none and the law helps the vigilant not the
indolent.”11

Therefore, in light of the above stated grounds, it is prayed that the

application for setting aside of the ex parte order be rejected. The
defendants have not given good cause in context with O IX R.6 and R.7 of
the CPC. They have not successfully explained their absence or their
counsel’s. Their absence is proven to be backed with ulterior motive and
malafide intention coupled with the fact that they have had possession of
the property which rightfully belongs to the plaintiffs. Not only has this
been detrimental for the plaintiffs but the court’s time has also been wasted.

9
Black’s Law Dictionary
10
2007 CLC 1302
11
2015 MLD 157 Peshawar Account General Khyber Pakhtunkhwa v Abdul Ali