1988S70 (PLP)

MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought from judgment dated 3‑3‑1988 of the Sind High Court; whereby Civil Revision of the respondents (defendants' side in a Land Declaratory suit) was allowed. An ex parte decree against them was set aside and case remanded for trial. Haji Shah Nawaz, since deceased predecessor‑in‑interest oft the petitioners had instituted a suit against Burhanuddin defendant (since deceased), his son from first wife, with a view to challenge an alleged gift made to the latter. The summons issued for the first time were served on the said defendant. After putting in the appearance in pursuance thereof, he absented. Order for ex parte proceedings was passed in 1971; but was set aside on his application. After some dates without any progress in the suit, the Presiding Officer of the Court retired. The post remained vacant for a, very long time. The Reader used to mark presence of the parties. They, it seems had become non‑serious about attendance. When a learned Judge assumed office, he on 28‑3‑1974 after noticing attendance, ordered for the filing of the written statement on 2‑5‑1974. On that date, the said defendant was marked absent and was formally summoned. For some dates he/his counsel could not be served Notwithstanding the same on 4‑11‑1974, the following order was passed for ex parte proceedings: "1‑40 p.m. Defendants called absent. No W.S.filed. Nnip instruction received. Notice on C/M is not being served, on defendant No.l. His Advocate is also not present sufficient time for filing the W.S. was given to defendants Nos. 2, 3 and 4 but nothing has been done today. None is present for them. The defendants are, therefore, made ex parte." Subsequently the suit was decreed ex parte on 7‑1‑1975. The application of defendant No. 1 (other defendants it seems pro forma, were also impleaded) for setting aside ex parte proceedings and decree, was dismissed. His appeal was also dismissed. They failed on the ground that the application was timebarred. On revision under section 115, Civil Procedure Code however, the High Court relying on, Rehman Weaving Factory v. I.D.B.P. (PLD 1981 SC 21) set aside the ex parte decree and remanded the case for trial from the stage it was declared ex parte. It was so ordered on the findings that order for ex parte proceedings was void, because of non‑service of said defendant in pursuance of order dated 2‑5‑1974. Leave to appeal has now been sought by the plaintiff side. We have heard the learned counsel at length on the main points; that, there was no need for issuing fresh summons to defendant No.l, as he was aware of the earlier proceedings; that the rule in the case of Rehman Weaving Factory was not applicable and defendant's application was timebarred; and that, the presence of counsel for the defendant having been noted on 28‑3‑1974, there was no legal necessity to issue summons for the defendant No.l on 2‑5‑1974. Supporting B arguments were also addressed. After the perusal of the Order Sheet for the entire relevant long period of frustrating useless attendance (patchy at places), we feel satisfied that the trial Court acted in the interest of justice, in issuing fresh summons to the defendant No.l. That being so, the order for ex parte proceedings, after noticing lack of service on him, was absolutely without any justification. We also do not agree with the learned counsel that the case of Rehman Weaving Factory was not attracted on the question of limitation. The main legal features of the two cases are similar. The assertion that the counsel for defendant No.l was present on 28‑3‑1974, relates to findings of fact. The argument in that behalf was not advanced in the High Court in the form as presented before us. Be that as it may, on the request of the learned counsel we again read the case diary. It seems, no objection was pressed from petitioners' side against issuance of fresh summon on 2‑5‑1974. Moreover, attendance record relied upon before us is not at all of such type that it could be held with certainty that defendant No.l and/or his counsel was present on 28‑3‑1974. The argument has no factual support. It needs to be observed also that the learned counsel for the petitioner was very anxious and perturbed due to the fact that after such lengthy litigation, the case was made to start afresh by the High Court. He forgets two important elements in such like cases, one of Law and the other of justice. The craving for the rule of Law, in a civilised society also demands equal distribution of its benefits for all the parties to the litigation. The other element‑‑that of justice is of no less importance. There is no denying the fact the case of the defendant No.l has not been heard on merits and that too due to the persistent fight by the petitioners' side, to win the case without a trial. It is true that the higher Courts do try to mitigate the loss suffered on account of delay, by not remanding the case and deciding it on merits. And even the Supreme Court has done so, in cases where enough material is on record for a satisfactory decision on merits. Here, unfortunately, due to the efforts of the petitioners' side, even, the stage for the framing of issues for trial of the real controversy, has not yet reached. Therefore, there was no alternative for the High Court except to remand the case, so that the trial on merits could commence. With the foregoing observations and discussion, we find no merit in this Petition. Leave to Appeal, accordingly, is refused. M.B.A./S‑163/S Leave refused.