2010 PLP 911 (MLD)

ALI AKBAR QURESHI, J.

This civil revision is directed against the judgment and decree, dated 28-10-2008 and 31-1-2006 whereby the suit filed by the respondent for possession through pre-emption was decreed ex parte on 21-11-1997. The application filed by the petitioner for setting aside the ex parte judgment and decree was dismissed and the appeal thereof, was also dismissed.

2. Learned counsel for petitioner contends that the petitioner filed an application for setting aside the ex parte judgment and decree before the learned trial Court. Along with the application an application under section 5 of the Limitation Act was also filed which has neither been decided by the learned trial Court nor by the appellate Court, therefore, the petitioner has been condemned unheard and the judgments, impugned herein, being violative of the principle of natural justice, are not maintainable. Next contended, that it was specifically urged before the learned appellate Court while filing the appeal but has not been attended or address by the learned appellate Court, therefore, the judgment, impugned herein, is result of mis-reading and non-reading of record.

3. Conversely, learned counsel for respondent supported the concurrent findings and submitted that both the learned Courts below have decided the application for setting aside the ex parte judgment and decree after recording the evidence, therefore, if the application under section .5 of the Limitation Act has not been decided, would have no effect upon the fate of the case. Reliance is placed on Syed Lal Hussain Shah v. Lal Muhammad and 5 others (2005 CLC 1076) and Shah Muhammad Khan another v. Muhammad Haleem and 3 others (2000 YLR 101).

4. Heard.

5. The suit for possession through pre-emption was filed by the respondent, which was finally decreed ex parte because of non-appearance of the petitioner. An application for setting aside the ex parte judgment and decree was filed along with an application under section 5 of the Limitation Act before the learned trial Court, who after framing the issues, recorded evidence and finally dismissed the application, being aggrieved thereof; an appeal was filed which was dismissed. It is established on record that the petitioner filed an application for condonation of delay because of the reason, the application for setting aside the ex parte judgment and decree was out of limitation but the same has neither been disposed of by the learned Courts below. Although, the learned Courts below decided the application for setting aside the ex parte judgment on merits that the petitioner has also been non-suited on the question of limitation. Even otherwise, the learned Courts below were under legal obligation to dispose of the application under section 5 of the Limitation Act, therefore, to this extent, the learned Courts below have failed to exercise the jurisdiction conferred upon them by law. It is now settled proposition of law that nobody should be condemned unheard and further, the Court should decide the lis on merits instead of dismissing the same on technicalities. The judgments referred by the learned counsel for the respondent have no nexus upon the facts of the instant case, therefore, are distinguished.

6. Resultantly, the judgment and decree, dated 28-10-2008 and 31-1-2006 passed by the learned Courts below are set aside. The matter is remitted to the learned appellate Court to re-decide the same including the application under section 5 of the Limitation Act filed by the petitioner. Both the parties shall appear before him on 15-7-2009. No notice Parvi shall be issued for presence of the parties and in case of non-appearance, the learned trial Court would be free to decide the matter on its own merits. M.U.Y./M-601/L???????????????????????????????????????????????????????????????????????????????? Case remanded.