2010 CLC 1458 (PLP)

ZIA-UR-REHMAN KHAN, J.

Petition in hand is directed against the judgment and order dated 18-7-2009 recorded by the learned Additional District Judge Charsadda whereby while dismissing the appeal of the petitioner the judgment and order dated 14-5-2009 rendered by the learned Civil Judge, dismissing the application of the petitioner for setting aside the ex parte decree dated 19-5-2008, has been upheld.

2. Short background of the instant litigation is that respondent No.1 in the capacity of plaintiff filed a suit against the present petitioner and Mst. Gul Bibi, the predecessor in interest of the remaining respondents, for declaration injunction and possession before the Court of Senior Civil Judge, Charsadda on the ground that the suit property was owned by his sister by virtue of inheritance of Mst. Taj Bibi and the alleged gift of the said property in favour of the petitioner / defendant is fraudulent, collusive and in this respect the mutation bearing No. 4295 dated 4-10-2005 is ineffective upon his rights. On being summoned, the petitioner, being defendant No.1, submitted her written statement wherein she raised many legal and factual controversies but it was on 27-9-2006 she was found absent and on 12-10-2006 she was proceeded against ex parte. The case was fixed for recording ex parte evidence and it was on 19-5-2008 when ex pane decree was granted against her. The said decree was put to execution and on 9-4-2009 the petitioner submitted an application before the trial Court for setting aside the ex parte decree but the learned trial Court vide order dated 14-5-2009 rejected her application and her appeal too, vide order dated 18-7-2009 met the same fate, thus, the instant revision petition.

3. Learned counsel for the petitioner mainly contended that although the petitioner had submitted written statement on 29-6-2006 and later on due to the shifting of her abode to another place she remained unaware about the proceedings of the case and the decree, so granted against her, is liable to be set aside. He next contended that the main case from time to time was transferred from the jurisdiction of one Court to the jurisdiction of another Court and in that eventuality the transferee Court was legally bound to effect the service of the petitioner again before passing the ex parte decree. Reliance in this respect has been placed upon few judgments reported as 1995 MLD 484, 1993 MLD 1025, 2000 YLR 1878 and 1983 CLC 286.

4. On the contrary, the learned counsel for the respondent / decree holder vehemently opposed the contentions of the learned counsel for the petitioner maintaining that once the petitioner entered appearance and joined the proceedings of the case by submitting a proper written statement, then she should have submitted an application for setting the ex parte decree under Article 164 of the Limitation Act whereunder the prescribed period of limitation is one month. He referred to two judgments of the august Supreme Court reported as 2006 SCMR 631 and 2005 SCMR 609.

5. I have heard pro and contra arguments of learned counsel for the parties and with their valuable assistance have gone through the material available on record.

6. At the very outset I would like to observe that in view of the judgments referred to by the learned counsel for the respondent, the prescribed period of limitation for setting aside the ex parte decree under Article 164 of the Limitation Act is one month and there can be no second opinion in this regard. Her application for setting aside the ex parte decree was indeed beyond the prescribed period of limitation. Be that as it may, but the striking feature of this case which imparts strength to the version of the petitioner is that after the petitioner was proceeded against ex pane, the case was posted for recording the ex parte evidence of the respondent and before the said decree could be passed the main suit was transferred from the jurisdiction of the said Court vide order dated 24-10-2007 under the directions of the learned Sessions Judge to the jurisdiction of another Court which received the same on the same date but instead of issuing fresh notices to the petitioner it was observed "that the defendants are already placed ex parte". Proceedings were continued and it was once again on 28-2-2008 when the case was transferred from the jurisdiction of the said Court to another Court under the directions of the learned District Judge and was received by the said Court on 19-3-2008 but again, no fresh summon was issued to the petitioner as a transferee Court with the result that on 19-5-2008 the ex parte decree was granted.

7. The moot question which crops up for consideration at this juncture is as to whether the transferee Court was required to have issued notice of appearance to the petitioner inspite of an order for ex parte proceedings against her. The answer is in positive. Because, after the transfer of the main suit from the jurisdiction of one Court to the jurisdiction of the other Court, it was the legal duty of the transferee Court to take the trouble of serving the absent defendant once again. The judgments, referred to, by the learned counsel for the petitioner squarely promote the cause of the petitioner because in all these judgments it has been unanimousty held that on the transfer of suit through administrative order notice is required for transfer of suit even in the presence of an order for ex parte proceedings against a particular defendant and the same would not deprive him of a right to receive such notice. Even this Court in a case reported in PLD 1988 Peshawar 33 while dealing with similar legal question has observed as under:- "

O.IX, Rr. 6, 7 and 13

High Court Lahore Rules and Orders, Vol.I, Chap. XIII, para.6

Ex pane proceedings- Case transferred by administrative order from one Court to another pending ex parte proceedings against defendants-Defendants, held, were entitled to notice after transfer-When such notice was not given, proceedings taken against defendants since transfer were liable to be set aside". Likewise, the relevant citations of the other judgments are also proving helpful in which the same view has been duly endorsed.

8. In this view of the matter, the petitioner has fully succeeded to make out a case of indulgence of this Court within the purview of section 115, CPC. Even otherwise, the petitioner being a "Parda Nasheen" lady has got a special right of being heard on merits in support of her respective legal rights, coupled with the fact that law favours adjudication on merits. Resultantly, the instant revision petition being full of substances is accepted, the impugned judgments and orders including the ex parte decree dated 19-5-2008 are hereby set aside and the learned trial Court is directed to give proper opportunity to the petitioner in defending her cause, in the light of defense set up by her in her written statement. Parties are left to bear their own costs. H.B.T./202/P Petition accepted.