P L D 1988 Peshawar 33 (PLP)

Inayatullah Khan plaintiff-petitioner through the instant Civil Revision Petition has challenged the order dated 14-9-1985 of the learned District Judge, Bannu vide which he accepted the appeal filed by Haji Muhammad Ayaz Khan (defendant No.9) against the order dated 7-4-1981 of the learned Senior Civil Judge, Bannu and setting aside, the ex parte decree on payment of costs of Rs.1,.400 he remanded the case to the trial Court for disposal on merits.

2. Inayatullah. Khan plaintiff-petitioner brought a suit in the Court of Senior Civil Judge, Bannu for (a) a declaration that he is owner in possession of Shop No.134/6 situate in Chowk Bazar, Bannu City and that defendants 1 to 7 have got no concern whatsoever with the same; (b) for a possession as owner of the said shop; and (c) for permanent injunction restraining the defendants 1 to 7 from interference with his ownership /possession of the plaintiff as also not to transfer the said shop by sale or otherwise made through defendant No.8 to defendant No.9 or to anybody else. Except for defendant No.1(Hamid Khan) the rest of the defendants were placed ex parte and ultimately in view of the statement of the special attorney of defendant No.1, j confessing the plaint, the suit of the plaintiff was decreed' by the judgment and decree of the Court of Senior Civil Judge, Bannu' dated 14-6-1979. On 29-7-1979, however, Muhammad Ayaz Khan. defendant No.9 made an application for setting aside the ex parte proceedings against him. This application was hotly contested by Inayatullah Khan plaintiff-petitioner and the learned Senior Civil Judge by his order dated 7-4-1981 rejected the petition for setting aside j the ex parte proceedings which obliged Haji Muhammad Ayaz Khan to prefer an appeal in the Court of District Judge, Bannu, who by his order dated 14-9-1985, accepted the appeal, set aside the order dated 7-4-1981 of the Senior Civil Judge on payment of costs of Rs.1,400 and remanded the case to the trial Court for decision of the case on merits. This order of the District Judge is now impugned before this Court by Inayatullah Khan plaintiff-petitioner.

3. Arguments of the learned counsel for the parties have been heard and record of the case examined.

4. Learned counsel for the petitioner contended that since in this case ex carte decree had been passed by the order dated 14-6-1979, the application for setting aside ex parte decree having been made on 29-7-1979, it was barred by limitation under article 164 of the Limitation Act which provides the time limit of 30 days from the date of decree. Learned counsel in support of his contention, relied on N.-W.F.P through Collector Mardan v. Faiz Muhammad P L D 1886 Pesh. 19 wherein it has been held that:- "What rule 6 clause (a) ibid has envisaged is that if it is proved that summons was duly served upon the defendant and despite that he did not turn up, the Court may proceed ex parte, and pass decree without recording evidence. The expression 'duly served' employed in this provision bears significance to denote that if the defendant was property informed of the action against him and yet he knowingly did not participate in the proceedings, it will be a proof against him that he does not want to contest the claim of the plaintiff and so ex parte decree is warranted in view of his conduct " Elaborating his arguments the learned counsel for the petitioner further contended that where it was proved that the defendant had duly been served and in consequence of his failure to attend an ex parte decree is passed the said decree could be set aside under Rule 13 of Order 9, C.P. C. provided he could satisfy the Court that he was either not duly served or was for sufficient cause prevented from appearance when the case was called but in this case, according to the learned counsel the defendant has miserably failed to establish that he was either not duly served or that he for sufficient cause was incapable of attending, the Court. Reliance in this behalf was placed on Ibrahim v. Qurban Ali P L D 1986 (Azad J&K)

71. I fully; agree on principle with the learned counsel for the petitioner that once a Court is satisfied that the defendant is duly served and despite valid service he has absented himself he may pass ex pane decree without recording evidence and in that case the time limit for setting aside the ex parte decree would be 30 days under Article 164 of the Limitation Act. In the instant case, however, as the record reveals, ex parte decree was not passed on the very date for which the defendant No.9 (Haji Muhammad Ayaz) was served, as required by rule 6 of Order 9, C.P.C. On the other hand on 17-5-1978 for which Haji Muhammad Ayaz Khan (defendant No.9) besides defendants 6 and 8 had been served, ex parte proceedings were directed against' them and fresh notices were directed to be issued against the rest of the defendants for 28-6-1978. The ex parte decree was passed on 14-6-1979. Now under the law the defendant who had been proceeded against ex parte were not prevented to participate in the proceedings and at any stage before the passing of the ex parte decree they could apply for setting aside the ex parte proceedings under Rule 7 of order 9, C. P. C. However, by the administrative order dated 22-5-1978 the case was transferred from the Court of Senior Civil Judge, Bannu who had passed the ex parte order against defendants 6, 8 and 9, to the Court of Civil Judge, Bannu. In that event it was mandatory for the Court transferring the case to the other Court to have issued notices to all the parties, including those against whom ex parte proceedings had been ordered under para 6 of Chapter 13 of High Court Rules and Order Vol. I which provides that:- "When .a case is transferred by administrative order from one Court to another the Presiding Officer of the Court from which it has been transferred shall be responsible for informing the parties regarding the transfer and of the date on which they should appear before the Court to which the case has been transferred. The District Judge, passing the order of transfer shall see that the records are sent to the Court concerned and the parties informed of the date fixed with the least possible delay. When a, case is transferred by judicial order the Court passing the order should fix a date on which the parties should attend the Court to which the case is transferred. Note, Case transferred by administrative order from one Court to another pending ex parte proceedings against defendants -Defendants entitled to notice after transfer." Reliance in this connection may also placed on 'Azizullah Khan and 4 others v. Arshad Hussain and 2 others P L D 1975 Lah. 879 wherein it has been laid down that: "When a case is transferred by an administrative order' from one Court to another while ex parte proceedings are, pending against the defendant, the latter is entitled to notice after transfer inasmuch as he is still a party to the litigation within meaning of para 6 of Chapter XIII, Volume I of High Court Rules and Orders (Lahore) and when such a notice is not given the proceedings taken against the defendants since transfer will be liable to be set aside." In the instant case as observed earlier the ex parte proceedings were ordered against defendant No.9 on 17-5-1978 and when the ex parte decree had not yet been passed by the administrative order the case was transferred from the Court of Senior Civil Judge, to the' Court of Civil Judge and in that event it was incumbent upon the Senior Civil Judge to have informed all the parties, including those against whom ex parte proceedings were directed, about the transfer of the case from his Court to the Court of Civil Judge, and having failed to observe this mandatory provision proceedings taken against the defendants since transfer were liable to be set aside.

5. Before I part-with it may be pointed out that in this case the process-server who had effected service on defendant No.9 and on whose report ex parte proceedings had been ordered against defendant No.9 has mis-conducted, in that, when in the proceedings regarding setting aside ex parte, proceedings against defendant No.9, he was examined in Court he in clear words stated on oath that he did not know Haji Muhammad Ayaz Khan (defendant No.9) personally and that the person (Haji Muhammad Ayaz Khan) who was present in Court had not been served and instead someone else had signed the notice. This statement on the part of the process=server is in clear conflict with the earlier affidavit which he had sworn before the Clerk of Court with regard to personal service of Haji Muhammad Ayaz Khan (defendant No.9) and accordingly he is liable to strict disciplinary action.

6. With these observations I see no ground to interfere with the order of the District Judge, setting aside the ex parte decree and directing the disposal of the case on merits, and this civil revision petition meriting no consideration is dismissed, leaving the parties to bear their own costs. M. Y. H./589/P Petition dismissed.