2013 PLP 1584 (YLR)

KHALID MAHMOOD, J.

Mehmood Hussain Shah and others petitioners through Civil Revision No.2/12 whereas Mst. Pervaizi Bibi and others through Civil Revision No.87/12 have challenged the judgment and decree dated 22-10-2011, whereby Additional District Judge-III, Abbottabad modified the judgment and decree passed by Civil Judge-I Havelian dated 23-11-2010.

2. Mst. Pervaizi Bibi and others petitioners in Civil Revision No.87/12 have a suit for declaration, permanent injunction and possession regarding property fully described in the heading of plaint against defendants/petitioners in Civil Revision No.12/12. Defendant No.1 appeared and contested the suit by filing written statement. The learned trial Court after recording pro and contra evidence and hearing the parties vide judgment dated 23-11-2010 decreed the suit. Feeling aggrieved, the defendants preferred appeal and learned appellate Court after hearing the parties dismissed the appeal with modification to the extent of 0.24 marla. Feeling aggrieved both the parties have filed these two revision petitions, as the same are outcome of one plaint and the judgments and decrees of the Courts below, therefore, are proposed to be disposed of by this single judgment.

3. Learned counsel for petitioners argued that defendants No.2 and 3 were not served properly and were wrongly placed ex parte by the trial Court. It was argued that they applied in time for setting aside of ex parte decree but were declined to join the proceedings. It was also argued that judgments and decrees of both the Courts below are against law and facts on record, therefore, are liable to be set aside.

4. On the other hand, learned counsel for respondents / petitioner in Civil Revision No.87/12 also assailed the impugned judgment and decree of appellate court to the extent of modification.

5. Arguments heard and record perused.

6. Admittedly, no personal service of defendants Nos.2 and 3 were effected by the trial Court and they were placed ex parte on publication of notice in the newspaper. Defendants on gaining knowledge about the pendency of suit applied for setting aside of ex parte proceedings but were declined. There is no proof that defendants were ever served personally by the trial Court. Law favous adjudication of lis after providing opportunity of hearing to both the parties and no one should be condemned unheard by the trial Court. It is also pertinent to note that petitioners were not given a chance to be heard by producing evidence in order to prove their stance regarding reason for their non-appearance. Respondents had not produced evidence to substantiate that petitioners Nos.2 and 3 were properly served. The mode of service has been prescribed in Order V, Rules 12, 17 to 20, C.P.C. Moreover, the petitioners had moved application for setting aside ex parte proceedings when the case was still in progress before the trial Court. Even during the proceedings the petitioners can join the proceedings against whom ex parte proceedings were ordered after assigning the reasons and rights involved in the case. Learned trial Court has erred in rejecting the application of petitioners without recording pro and contra evidence regarding their service and evaluating their claim of ownership over the suit property. Reliance can be placed upon case-law reported as Gulzada v. Jamil Khan 2002 CLC 1907), wherein it has been held as under:-- "Ex parte proceedings, setting aside of

Non-service of process

Complaint was filed against the applicant (Advocate) and the ex parte proceedings were initiated by the Disciplinary Committee against him

Neither the applicant, nor his clerk was served for the date fixed by the Disciplinary Committee

Effect

Law insists decision on merits on the well-known maxim of law, "that nobody should be condemned unheard"

Tribunal noted that the maxim was well-entrenched in our legal system and the same was to be saved from being violated

Order of ex parte proceedings passed against the applicant by the Disciplinary Committee was set aside. Application was allowed in circumstances". In case reported as "Hashim Khan v. National Bank of Pakistan 992 SCMR 707), it was held as under:-- "No period of limitation was prescribed for setting aside ex-parte order though period of limitation had been prescribed for setting aside ex parte decree

Trial Court was wrong in dismissing defendant's application for setting aside ex parte order on the ground that same had been submitted at a belated stage

High Court in setting aside ex parte decree had acted in accordance with law".

7. So in the facts and circumstances, it is deemed proper to set aside the ex parte proceedings initiated by the trial Court at the first instance and then to set aside the impugned judgments and decrees of the Courts below.

8. Consequently, Civil Revision No.2/12 is allowed. Impugned judgments and decrees of both the Courts below and the ex parte proceedings against defendants No.23 and 3 ordered by the trial Court are hereby set aside, subject to payment of costs of Rs.20,000 (Rs.10,000 each). The case is remanded back to the trial Court to proceed further in accordance with law. Parties are directed to appear before the trial Court on 12-11-2012.

9. In view of the above, Civil Revision No.87/12 having become infructuous is hereby dismissed. JJK/122/P Revision dismissed.