2012 PLP 913 (MLD)
RESHAM DIN — Petitioner Versus Mst. NEKAM ZADI and 2 others — Respondents
| Citation | 2012 PLP 913 (MLD) |
| Forum / Court | Peshawar |
| Bench Members | N/A |
| Parties | RESHAM DIN — Petitioner Versus Mst. NEKAM ZADI and 2 others — Respondents |
| Primary Law | Civil Procedure Code (V of 1908) |
Q1: What are the key laws and sections cited in 2012 PLP 913 (MLD)?
This judgment primarily cites: Civil Procedure Code (V of 1908) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2012 PLP 913 (MLD)?
The case was heard and decided by the Peshawar bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2012 PLP 913 (MLD) (RESHAM DIN — Petitioner Versus Mst. NEKAM ZADI and 2 others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Nasir Mehmood Khattak for Petitioner.
- Salamat Shah Masud for Respondent.
Headnotes / Summary
O.IX, R. 13
Constitution of Pakistan, Arts. 199
Constitutional petition
Application for setting aside of ex parte decree
Petitioner was abroad at the time when ex parte decree was issued and his service through proclamation was made in a newspaper having limited circulation
Petitioner was arrested in the execution of the decree and moved an application for setting aside the ex parte decree, contending that he came to know about the ex parte decree on the day he was arrested
In view of the contention of the petitioner, his application for setting aside ex parte decree was not filed beyond the period of limitation prescribed by law
Constitutional petition was allowed and orders passed by courts below were set aside and the case was sent back to Trial Court for decision afresh in accordance with the law.
Judgment & Decree
EJAZ AFZAL KHAN, C.J.
Petitioner through the instant writ petition has questioned the order dated 17-3-2010 of the learned Additional District Judge, Karak at Takht-e-Nasrati, whereby he dismissed the appeal filed by him and maintained the order dated 19-12-2009 of the learned trial Court.
2. The main contention of the learned counsel for the petitioner was that where the petitioner was admittedly abroad, his service through proclamation in a newspaper having limited circulation, could not be said to have been proper and that his application for setting aside the ex parte decree moved within three days after getting knowledge about that, could not be dismissed as being time-barred.
3. As against that, the learned counsel appearing on behalf of the respondent contended that in the days of fast communication, the entire World reduced into a global village, therefore, the plea that the petitioner being abroad could not know about the ex parte decree is unbelievable on the face of it and that the orders of the Courts below declining to set aside the ex parte decree being free from any jurisdictional error are not open to any exception.
4. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
5. It is not disputed on the record that the petitioner, at the relevant time, was abroad. It is also not disputed that service through proclamation was made in a newspaper having limited circulation. The petitioner was arrested in the execution of decree on 19-2-2009. He moved an application on 26-2-2009. In para-3 of the application, he clearly stated that he came to know about the ex parte decree on the day, he was arrested. In this background, we do not agree with the Courts below that his application for setting aside the ex parte decree was filed beyond the period of limitation prescribed by law. Quite apart from this, when decision on merits is the most cherished goal of law and the party at fault can be punished by imposition of a reasonable cost, a decree passed at its back, would be rather harsh. We, thus, allow this writ petition, set aside the impugned orders on a cost of Rs.5,000 and the send the case back to the learned trial Court for decision afresh in accordance with law. The parties are directed to appear before the trial Court on 30-7-2011. M.W.A./44/P Case remanded.