P L D 2005 Lahore 240 (PLP)

A declaratory suit was tiled by Qaim Din respondent alleging therein that Muhammad Aslam deceased (predecessor in interest of the petitioners) had encroached upon the property of the plaintiff. He had prayed for declaration that he was owner of property No.192‑E measuring 3 Marlas 60 sq. ft. and that the defendant/petitioner had encroached upon 44 Sq. feet of land of the plaintiff, consequential relief of possession was also claimed. In the suit written statement was filed by Muhammad Aslam deceased who denied the assertions of the respondent/plaintiff. The said suit was dismissed for non‑prosecution on 18‑1‑1992 when Muhammad Aslam deceased and his counsel was also present. On 18‑10‑1992 the suit was, however, restored subject to costs of Rs.100. According to the learned counsel the order of restoration of the suit was made by the Court in the absence of the defendant. From the order‑sheet it appears that an attempt was made to serve the defendant through notice, registered post acknowledgement due and affixation of the notice and thereafter by publication of notice in newspaper. On 2‑1‑1993 it was noted by the learned trial Court that despite the publication of notice in the newspaper the defendant had not appeared he was accordingly proceeded exparte. The suit was eventually decreed ex parte on 25‑2‑1993, Execution proceedings were taken out after about one and half year wherein warrant of possession was issued which was executed on 25‑5‑1995 i.e. the date when the petitioner/defendant is said to have acquired knowledge of the ex parte decree. It was then that on 6‑6‑1995 an application for setting aside of the ex parte decree was moved by Muhammad Aslam defendant complaining that he had not been served and had no knowledge of the restoration of the suit, which had been dismissed earlier nor was aware of the subsequent proceedings therein. It was alleged that the petitioner Muhammad Aslam was an illiterate person and was unaware of any notice published in `Jahan Numa'. The application was contested. After framing issues and recording evidence the same was dismissed by the trial Court on 28‑1‑1997. Appeal preferred thereagainst by the successors in interest of Muhammad Aslam deceased i.e. the petition was dismissed by the Additional District Judge, Lahore on 23‑6‑2000. This is revision petition in the above context.

2. Despite the fact that the respondents was served and had engaged the learned counsel and that the name of the learned counsel duly appears in the cause list none has appeared today. The revision petition thus has been heard ex parte.

3. The leaned counsel for the petitioner has strenuously contended that the ex parte proceedings were result of collusion with the Process Serving Agency and the notice published in `Jahan Numa' never came to the knowledge of Muhammad Aslam deceased defendant who was an illiterate person and that since he had initially been contesting the suit there was no reason for him to remain absent from the proceedings had he been served or aware of the pendency of the suit after restoration thereof. It is contended that even the execution proceedings were commenced quite belatedly and he was dispossessed suddenly through the warrant of the Court when he came to know of the ex parte decree on 25‑5‑1995. It is stated by the learned counsel that not only this but other litigation qua the same property and the same parties is also pending and the petitioners or their predecessor could not afford to avoid the service of notice or absent from the proceedings resulting in ex parte decree. He has placed reliance upon Muhammad Yousaf and 7 others v. Muhammad Azim and 2 others (1989 SCMR 1998), Syed Muhammad Anwar, Advocate v. Sheikh Abdul Haq (1985 SCMR 1228), Mangtoo etc v. Mst Hassan Bibi etc. 1989 ALD 326(2), Abdul Rashid v. Abdul Shamim and another (1981 CLC 550), Muhammad Samin Jan v. Messrs Ferozesons Laboratories, Ltd., Nowshera and 2 others (PLD 1972 Peshawar 133), Mst. Sardaran Begum v. Muhammad Fazil and another (1983 CLC 2303), Shakoor Hussain v. Muhammad Sadiq (1991 MLD 67) and Mst. Jag Subhai v. Allah Diwaya and others (1992 MLD 1635) to contend that in the circumstances the ex parte proceedings and, decree was liable to be set aside and the Courts below have acted illegally and with material irregularity in dismissing the application and the appeal of the petitioner.

4. The contentions have been considered in the light of the material on the record.

5. The above brief narration of the factual background in which the ex parte proceedings were taken against Muhammad Aslam deceased and decree was passed speaks for itself. As has been noted above the suit filed by the respondent was vehemently being contested by the predecessor if interest of the petitioners, which was dismissed for non -prosecution on 18‑1‑1992 in his and the presence of his learned counsel but was restored on 18‑10‑1992 as stated by the learned counsel without securing the presence of the defendant. There is nothing in the order sheet of the trial Court to indicate as to payment/deposit of costs, subject to which the suit had been restored. However, against Muhammad Aslam (deceased) ex parte proceedings were taken on 2‑1‑1993 and eventually the decree was passed. The evidence led by the petitioners that they were totally unaware of the proceedings after the restoration of the suit has not received due consideration from the Courts below. It was specifically stated by Muhammad Irfan son of Muhammad Aslam deceased who appeared as AW‑3 that after the suit had been dismissed on 18‑1‑1992 they had never received any intimation about the restoration or proceedings thereafter. Similar was the statement of Muhammad Ishaq son of Muhammad Aslam deceased A.W.4. Though the respondent/plaintiff appeared to rebut the assertions of the petitioners yet the Process Server was not produced to prove due service of notice/summons upon Muhammad Aslam. By not producing him respondent/plaintiff failed to discharge initial burden. This he was obliged to do in view of Muhammad Yousaf and 7 others v. Muhammad Azeem and 2 others (1989 SCMR 1998), Mangtoo etc. v. Mst. Hassan Bibi etc. (1989 ALD 326(2)), Mst. Sardaran Begum v. Muhammad Fazil and another (1993 CLC 2303) and Abdul Rashid v Abdul Shamim and another (1981 CLC 550). Consensus of the Courts spelt out from the precedents is that for defending an ex parte order the plaintiff has to produce the Process Server to prove due service and even substituted service effected cannot be of any legal efficacy. The petitioners/defendants had brought a plausible explanation arid a sufficient cause was made out that their absence from the proceedings in the suit after its restoration was not intentional or deliberate and was because of the fact that they had no knowledge of the same.

6. The background and the peculiar circumstances of this litigation between the parties, can also not be ignored inasmuch as that the suit before its dismissal for non‑prosecution was being contested vehemently by Muhammad Aslam deceased. He certainly could not afford to be absent from the proceedings had he been served or had knowledge of the proceedings. It also cannot be ignored that there are still other suits pending between the parties. According to the learned counsel there is one suit filed by the respondent and two suits filed by the petitioners and a contempt matter is also pending between the parties. According to him the report of local commission in a suit supports their version. In view of such serious contest going on between the parties regarding the disputed property it does not appeal to reason or sense that Muhammad Aslam deceased would have knowingly and deliberately avoided any service so that an ex parte decree be obtained by the respondent against him. In such view of the matter I am unable to subscribe to the view taken by the Courts below in the matter in upholding the ex parte decree. The judgment of the appellate Court whereby the order of the trial Court dated 28‑1‑1997 has been upheld cannot be sustained, the same is accordingly set aside. As a result whereof the ex parte order dated 2‑1‑1993 and consequential decree dated 25‑2‑1993 will stand set aside. The suit filed by Qamar Din respondent will be deemed pending which shall be tried and decided in accordance with law by the trial Court. Since other civil litigation is also pending between the same parties qua the same property, it will be appropriate for the parties to seek consolidation of all such litigation by making application before the learned District Judge, Lahore so that any conflict and contradiction of decisions is avoided. The revision petition is accepted accordingly with no order as to costs. M.H./M‑873/L Revision allowed.