2013 PLP 893 (YLR)

AMIN-UD-DIN KHAN, J.

Through this civil revision, petitioner has challenged the judgment/order dated 17-6-1999 passed by the District Judge, Rahimyar Khan, whereby appeal filed by the petitioner was dismissed and the order dated 28-2-1998 passed by the Civil Judge, Rahimyar Khan, whereby application filed by the respondent for setting aside the ex parte judgment was accepted.

2. Brief facts of the case are that petitioner-plaintiff filed a suit for pre-emption on 6-3-1989 against the respondent. After proceedings against the respondent-defendant ex parte, the suit was ex parte decreed vide judgment and decree dated 14-9-1989. The respondent on 1-3-1995 filed an application for setting-aside the judgment/order and decree. The reply was called which was filed. The learned trial Court after framing the issues, invited the parties to produce their evidence. Both the parties produced their respective evidence. The learned trial Court vide order dated 28-2-1998 accepted the application and set aside the ex parte judgment and decree. Aggrieved by the said order, petitioner preferred an appeal which was dismissed through impugned order dated 17-6-1999. Hence instant civil revision.

3. At the very outset, learned counsel for the respondent has raised a preliminary objection that this revision petition is not competent and the appeal filed before the 1st appellate Court was also not competent. Learned counsel states that when the application filed under Order IX Rule 13 of the C.P.C. was accepted, appeal was not provided and that at the most, revision was competent, therefore, appeal filed by the petitioner was incompetent and further when right of revision was available and even if it was not exhausted, then revision is not competent.

4. Learned counsel for the petitioner admits that the right of appeal was not available against the order dated 28-2-1998 whereby ex parte judgment and decree was set aside. Learned counsel states that right of revision was available and appeal filed by the petitioner can be treated as revision and this revision even can be treated as a constitutional petition under Article 199 of the Constitution. He prayed that it may be converted into writ petition.

5. Keeping in view prayer of learned counsel for the petitioner, I am deciding this petition as constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, therefore, petitioner is directed to pay the requisite court-fee within a period of 30 days from today.

6. Under the jurisdiction vested in this Court under Article 199 of the Constitution, petitioner is bound under the law to show the jurisdictional defect in the judgment/ orders passed by the Courts below and to show that the orders are the result of excess of jurisdiction by the Courts below. When defendant-respondent has challenged the validity of ex parte proceedings against him and he made statement on oath before the Court, then petitioner-plaintiff was bound under the law to prove the valid ex parte proceedings against the defendant-applicant. Learned counsel for the respondent relied upon the case titled "Muhammad Asghar and others v. Qamar Din" (PLD 2005 Lahore 240) and stated that the petitioner-plaintiff was bound to produce the Process Server to prove the service of summons upon the defendant. Learned counsel for the respondent states that admittedly, Taj Muhammad, plaintiff-petitioner is Clerk of a Senior Advocate, therefore, he was able to procure the fictitious process of service against the respondent-defendant. Even I have noticed that the formalities for substituted service provided under Order V, Rule 20, C.P.C. have not been observed. There is no report regarding refusal of service by the defendant. In summons (Exh.A-6), Process Server has just reported that when he reached at the spot, defendant went away. It is not in his report that he met Kalu, defendant-respondent and he refused to accept the service and on the next date, there was order of affixation of summons which is also substituted mode. The Process Server is required first to serve the summons and if it is not possible, then to affix it on the conspicuous part of the residential house of the person against home the summons has been issued and then publication can be ordered and further in accordance with the publication, postal certificate by the publisher is also required but copy of newspaper has been sent to the addressee. I have noticed that all these formalities have not been observed and there are concurrent findings of facts recorded by the Courts below. When on the factual side, both the Courts below came to the conclusion that summonses were not served upon the defendant, therefore, filing of application for setting aside ex parte judgment and decree after a period of five-years, three months and eighteen days, can never be a bar. I have already observed that scope of writ petition is more narrow than the revisional jurisdiction.

7. Learned counsel for the petitioner absolutely failed to make out a case of interference by this Court while exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan as he failed to show any jurisdictional defect or excess of jurisdiction on the part of both the Courts below.

8. In this view of the matter, instant civil revision treated as writ petition, being devoid of any force stands dismissed. KMZ/T-5/L Petition dismissed.