1999 PLP 553 (MLD)

The relevant facts for the decision of this revision are that Karam Elahi, the original defendant, purchased land measuring 32 Kanals and 2 Marlas situated in Village Jarahi Tehsil and District Rawalpindi, through registered sale-deed dated 5-10-1976 for a total consideration of Rs.19,000, The petitioner filed a suit for permanent injunction restraining the defendant from alienating any land. The suit was resisted by the defendant and the same was decreed ex parte vide judgment dated 21-2-1990. The defendant moved for setting aside that ex parte decree. The trial Court framed the following issues:- (1) Whether there are sufficient reasons to set aside the ex parte decree dated 21-2-1990? OPA (2) Whether the application is time-barred? OPR (3) Whether the petitioner is liable to be prosecuted under section 193, Cr.P.C.? OPR (4) Whether the application is false and vexatious, if so, whether the respondent is entitled to recover special costs from the Petitioner? OPD The defendant appeared as AWA while the plaintiff/petitioner examined Muhammad Nasir Naib Qasid as R.W.I. The trial Court after hearing the arguments dismissed that application vide order, dated 29th of April, 1992 which was assailed in appeal before the learned District Judge. The appeal was accepted by the learned Additional District Judge vide judgment dated 11-5-1994. The result was that the ex parte decree was set aside. Now the petitioner has filed the present revision. The same was admitted to hearing. Notices were issued to the respondents who appeared and contested the revision.

2. The learned counsel for the petitioner argued that notice, R/4 was duly issued and served on the defendant personally as is clear from the report Exh.R3 of the Process Server on the reverse of these notices. It is argued that the Additional. District Judge wrongly and illegally set aside the findings of Civil Court recorded with reference to the evidence. It is added that the findings of the learned Additional District Judge that 21st February, 1990 was not a date of hearing, therefore, the suit could not be disposed of and that too without recording evidence, are against law. It is added that the case was fairly and squarely covered by the provisions of Order IX, Rule 6, C.P.C.

3. On the other hand the learned counsel for the respondent argued that neither anybody identified the defendant nor report was witnessed by any one, therefore, the same was not sufficient to pass ex parte decree against the defendant. Moreso when the defendant appeared as A.W.1 in the application for setting aside ex parte decree and stated on Oath that he never received that notice from the Civil Court. It is argued that neither the petitioner furnished the registered letter for issuance of summons in the main suit nor any summons were issued as directed by the trial Court, therefore, the order of ex parte decree was bad in law and was rightly set aside by the learned Additional District Judge. It is argued that the superior Courts have repeatedly held that recording of evidence should not be lightly dispensed with The Provisions of sub-rule 1 (Al of Rule 6 of Order IX is permissive and not mandatory. The trial Court failed to appreciate that it has the discretion to decree the suit straightaway without recording evidence.

4. I have given my anxious consideration to the arguments and gone through the record. The suit was filed on 14-2-1990 when the trial Court proceeded to pass the following order:-- The issue and service of summons is dealt by Order V. Every summon is to be accompanied by a copy of the plant and it could be either to settle issues or final disposal as per Rule 5 of Order V, C.P.C. while pro forma of summons is given at No.2 of???? Appendex 'B'. It is clear from the record that the petitioner neither furnished the registered letter nor the summons as per Rule 5 of Order V, C.P.C. were issued to the defendant. The notice Exh.P/4 was the ordinary notice for appearance, therefore, there was no basis or. 21-2-1990 to proceed ex parte against the defendant and decree the suit.

5. Now coming to the service, the Process Server appeared as R. W-1 and deposed that the plaintiff/petitioner accompanied him and identified the A defendant. This fact is not reflected in the reports which is also not witnessed by any one. The Process Server has neither given the place nor time of service nor mentioned the factum of delivery of copy of the plaint to the defendant. He disregarded the provisions of Rule 18 of Order V, C.P.C. altogether. The trial Court although under legal obligation to ensure that the defendant had duly been served as per provision of Rule 6(1)(a) of Order IX, C.P.C. yet failed to verify the factum of service. This resulted in miscarriage of justice, therefore, the service was bad in law, as such, could not be acted upon. In this behalf reference can be made to the judgments reported as Begum Kishwar Abid Hussain and another v. Jhang Central Cooperative Bank Ltd., Jhang and 2 others (PLD 1976 Lahore 1521), Mst. Hajra Parekh v. M. Rashid-ud-Din (1985 CLC 256) and M. Saadullah and 28 others v. Tahir Ali and 2 others (1986 CLC 2643), therefore, the decree passed on the basis of illegal ex parte order, was liable to be set aside and the appeal of the defendant was rightly accepted by the first Appellate Court.

6. The Trial Court has proceeded in a most careless and reckless manner while decreing the suit ex parte without recording evidence. It did not even care 8 to ascertain the nature of the suit and find out that whether recording of evidence was necessary or not. He seems to have taken the provisions of Rule 6, Order IX, C.P.C. as mandatory. He should have recorded reasons for not recording evidence.

7. The upshot of this discussion is that there is no merit in this revision. The same is dismissed with costs. H.B.T./T-44/L????????????????????????????????????????????????????????????????????????????????????? Revision dismissed.