1990 PLP 658 (CLC)

Remaining Respondents: Ex parte. Date, of hearing: 3rd July, 1989. This revision petition is directed against order dated 12‑7‑1987 passed by learned District Judge, Kasur whereby application moved by the petitioner under Order 41 Rule 27 C.P.C. for permission to produce additional evidence in appeal filed by the respondents against ex parte judgment and decree passed by the learned trial Court against them in the suit filed by the petitioner.

2. The respondents instead of making an application under Order 9 Rule 13 C.P.C. directly filed the appeal against the ex parte decree alleging therein that they were not duly served in the suit or even otherwise did not have the knowledge of pendency of the suit against them. In order to meet the said allegations, the petitioners made an application under Order 41 Rule 27 C.P.C. for allowing them to produce copy of the plaint in the suit titled Mst. Musi v. Mst. Amir Begum. A copy of application moved by the respondents in the said suit for summoning the record of the suit from which this revision petition has arisen as also affidavit of Bashir Ahmad respondents/appellants in order to establish that the respondent had knowledge about the pendency of this suit which fact was stated by him in the said application for summoning the record.

3. The learned District Judge dismissed the application through impugned order dated 12‑7‑1987 on the ground that it was not shown as to on which issue the petitioner wanted to produce additional evidence and that no such application was moved before the trial Court although the suit remained pending before the learned trial Court for a considerable period.

4. Learned counsel for the petitioner argued that there was no occasion to make such an application before the learned trial Court ‑as a plea was raised in appeal before the learned District Judge for the first time that the respondents/appellants were neither served nor they had knowledge of the pendency of the suit therefore, the application was filed before the learned District Judge in order to establish prima facie that the said ground was false therefore, the application has been rejected on the grounds not available for rejection of the same in the circumstances of this case.

5. I have heard the learned counsel for the parties. Learned counsel for respondents when questioned could not give satisfactory answer as to in what manner and through what material this oral assertion of the respondents that they were neither served nor had the knowledge of the pendency of the suit for seeking setting aside of ex parte in appeal, the petitioner could defend their rights under the decree and could establish that the said plea was false except through some material to be brought on record to satisfy the Court that the said plea was not correct. The grounds on which the application was rejected were no grounds on which the same could be disposed of. The learned lower appellate Court taking erroneous view of the matter has failed to exercise jurisdiction vested in it under the law to dispose of the said application on merits after, considering the attending circumstances viz. the respondents wanted the Court to set aside ex parte decree on the mere assertion that they were neither served nor had the knowledge of pendency of suit. Had they moved an application under Order 9 Rule 13 C.P.C. the trial Court would have framed issued and allowed the parties to produce evidence in which case the petitioner would have had an opportunity to produce all the evidence including the documents which were sought to be produced before the learned lower appellate Court. This aspect of the case has not received any consideration which had material bearing upon the proper disposal of the application on application of judicial mind.

6. It is no doubt open to the respondents to argue before the learned lower appellate Court that the ex parte decree was not maintainable on merits. If the respondents succeed in getting the ex parte decree set aside on merits there would be no occasion to go into the question of service or non‑service of notice and the allegation that the addresses of the respondents were not correct or that they did not have the knowledge of pendency of the suit. However, if the learned lower appellate Court is to consider the question of service of the respondents and their knowledge about the pendency of suit and is to proceed to interfere with the ex parte decree passed in favour of the petitioner on those premises, the petitioner in that case had valuable right to establish before the Court that the said grounds were false and for that matter they have a right to bring on record such material to resist the said grounds which were taken in appeal. The petitioner could maintain that the said grounds were false to defend the decree which has passed in their favour as a consequence of which they have acquired a valuable right. The application of the petitioner as a matter of fact should have been kept pending and considered and disposed of alongwith the main appeal as discussed above.

7. For the foregoing reasons, this revision petition is accepted. The impugned order dated 12‑7‑1987 is set aside. The application of the petitioner moved under Order 41 Rule 27 C.P.C. as a result of this order shall be deemed to be pending and shall be disposed of alongwith the main appeal. The parties are left to bear their own costs. H.B.T./I‑163/L Revision petition accepted.