2004 PLP 266 (CLC)

TALAAT QAYUM QURESHI, J.

Through writ petition in hand the petitioners have called in question the judgment/order, dated 14-12-2002 passed by the learned Additional District Judge-V, Peshawar, whereby application filed by respondent No. l for setting aside ex parte eviction order was accepted and ex parte eviction order was set aside.

2. Miss Nusrat Yasmin, the learned counsel representing the petitioners argued that the impugned order is against the relevant provisions of law.

3. It was also argued that appeal filed by respondent No.1 was entrusted to Additional District Judge-V, Peshawar for disposal vide order dated 9-12-2002 on which date the learned Court heard preliminary arguments and pre-admission notice was issued to the petitioners/ respondents for 12-12-2002. The petitioners' counsel submitted Wakalat Nama on the said date and the case was posted for. 14-12-2002, on which date without hearing the learned counsel for the petitioners /respondents the impugned order was passed. The said order was against the settled principles of audi alteram partem. ,

4. It was also argued that the learned Appellate Court placed reliance on 1982 CLC 2203, but there is no judgment reported on the said page, which would support respondent No.1's case, which shows that the learned Appellate Court has decided the appeal in two days and that too in haphazard manner. The impugned judgment/order is, therefore, not sustainable.

5. On the other hand Mr. Shumail Ahmad Butt, the learned counsel representing respondent No.1 argued that the learned counsel for petitioners/respondents had filed Wakalat Nama on 12-12-2002. He was heard as is clear from the order. Presumption of truth is attached to the judicial proceedings. The judgment/order, dated 14-12-2002 was passed after hearing the learned counsel for the parties and was in accordance with law.

6. It was also argued that ex parte order was obtained on the basis of wrong reports given by the process-server, who was hand-in-glove with petitioners. It is on record that petitioners had during the pendency of eviction petition furnished correct address of respondent No. 1, but only summons were issued on the wrong address and the process-server had wrongly stated that he abused. In fact the respondent No. l was never served:

7. We have heard the learned counsel for the parties and perused the record.

8. The petitioners filed eviction petition against 'respondent. No. l in: the Court of learned Rent Controller, Peshawar on 23-5-2001. The respondents failed to appear, hence he was proceeded against ex parte' After recording ex parte evidence, ex parte eviction order was passed in favour of petitioners against respondent No. l on 31-7-2001. Petitioners filed execution petition before the Executing Court. Pursuant to the order, passed by the learned Executing Court forcible possession was taken by petitioners on 18-2-2002. Respondent No. l filed application for setting aside the ex parte eviction order but the said application was dismissed vide order, dated 3-12-2002. He filed appeal in the Court of learned Additional District Judge-V, Peshawar which was allowed vide judgment/order, dated 14-12-2002, the ex parte eviction order was set aide.

9. The perusal of the record shows that respondent No.1 filed, Appeal No.26/R.A. on 9-12-2002 in the Court of learned District Judge, Peshawar, which was on the, same day marked to learned Additional District Judge-V, Peshawar for disposal, who heard preliminary arguments on .the same day and directed for issuance of pre-admission notice in the names of petitioners/respondents. The case was posted for 12-12-2002. On the said date i.e. 12-12-2002 the learned counsel for the petitioners/respondents filed Wakalat Nama and the case was posted for orders for 14-12-2002. Till 12-12-2002 even if the learned counsel fore the parties were heard, their preliminary arguments with regard to the admission of the appeal were heard. The impugned order dated 14-12-2002 shows that the appeal was admitted to regular hearing on the same day. Instead of allowing the learned counsel for the parties to argue the main appeal, the learned Additional District Judge took upon himself to decide the main appeal. The learned Court has placed reliance upon a reported judgment in 1982 CLC 2203, but the perusal of the said book shows that there is no such judgment reported which could support the; case of respondent No.

1. The learned Appellate Court even did not bother to open the book cited at the bar to confirm as to whether there was any judgment reported in the said book, which could support either of the parties. This shows that the learned Court had already made up its mind and was bent upon to decide the appeal in favour of respondent No.

1. On the one hand the appeal was decided within six days and on the other hand the learned Presiding Officer decided the same in haphazard manner. The Presiding Officer of a Court is required to maintain balanced attitude in dealing with the grievances of the parties with regard to the conduct of proceedings. The Presiding Officer is also supposed to maintain his posture and conduct in a manner which would inspire confidence of the parties and would reflect his impartiality and neutrality in the conduct and disposal of cases. He should be fair to the parties. As mentioned above proceedings in this case have been conducted in manner showing undue haste and indecent zeal due to which two fundamental principles of judicial proceedings viz that the justice should not only be done but should also be seen to have been done and that no man should be condemned unheard have been violated. The learned Presiding Officer is directed to be careful in future and while deciding the cases, should follow the golden principles mentioned above. We, therefore, allow the writ petition in hand, set aside the impugned judgment/order passed by the learned Additional District Judge-V, Peshawar dated 14-12-2002. The appeal filed by respondent No. l shall be deemed to be pending before the said Court, which shall be decided after hearing the parties within two months positively. Parties are directed to appear before the said Court on 9-10-2003. Office is directed to send the record to the concerned Court within a week positively. There shall be no orders as to costs. S.A.K./984/P Petition allowed.