2009 PLP 38 (MLD)

MUHAMMAD ALAM KHAN, J.

Khidmat Hussain son of Baz Gul now dead and represented by his legal representatives and Mst. Jan Sultan his widow had brought a suit for the recovery of Rs.25 Lacs against the defendants under the Fatal Accident Act. The matter was tried by the learned Civil Judge, Kohat and the Chairman WAPDA and others, defendants/petitioners herein were placed ex paste and consequently an ex parte decree was passed by the learned trial Court against them.

2. The defendants/petitioners later on filed an application for setting aside the ex parte decree which was consequently accepted and ex parte decree was set aside under the provisions of Order IX rule 13, C.P.C.

3. The plaintiffs/respondents filed a revision petition under section 115, C.P.C. which came up for hearing before the learned Additional District Judge-V, Kohat who accepted the same on 20-1-2007 and set aside the order of the trial Court and restored the ex parte decree passed by the trial Court against the petitioners.

4. The Chairman PESCO WAPDA defendants/petitioners then filed a review petition which came up for hearing before the Additional District Judge-V, Kohat was dismissed by the learned Additional District Judge-V, Kohat vide his Judgment/order, dated 12-3-2007.

5. Now the defendants/petitioners have filed the instant writ petition putting a challenge to the revisional order of the learned Additional District Judge-V Kohat, dated 20-1-2007.

6. Learned counsel for the Chairman WAPDA petitioners submitted that the impugned judgment passed by the learned revisional Court was not in accordance with law and is without jurisdiction. It was also argued that the petitioners have not been served in accordance with law and thus, the learned trial Court had rightly set aside the ex parte decree, in order to, decide the lis on merits. It was submitted that the interference by the Revisional Court was unwarranted in law and was without lawful authority.

7. On the other hand the learned counsel for the plaintiffs/ respondents argued that the petitioners had been duly served by the trial Court and inspite of that they did not opt to appear before the Court to contest the suit and so they were rightly proceeded against ex parte and the ex parte decree was strictly in accordance with law, because once the knowledge of the ex parte decree is proved, the due service or otherwise, loses its importance. Reliance was placed on a judgment handed down in the case of "Zafar-ul-Haq v. Waris Iqbal and another" reported in PLD 1979 Lahore 793(B).

8. We have heard the learned counsel for the parties in detail and with their assistance scanned the record of the case.

9. Perusal of the record reveals that the valuation of the suit was fixed by the plaintiffs/respondents to be Rs.25 Lacs and admittedly the value for the purpose of jurisdiction was above One Million. Thus, the appeal or revision was not competent before the learned Additional District Judge-V, Kohat and only this Court was competent to hear the appeal or revision under the provisions of Civil Courts Ordinance, 1962 as amended upto date read with section 115 of the Civil Procedure Code and thus, the Revision Petition before the learned Additional District Judge-V, Kohat was not competent and the order passed in revision was without jurisdiction and coarm-non-judice.

10. When on this aspect of the case the learned counsel for the respondents was questioned, he frankly conceded and rightly so, that the revisional Court had no jurisdiction to entertain the revision. He however, submitted that the setting aside of the ex parte decree by the learned trial Court was not in accordance with law and the plaintiffs/ respondents were at least, entitled to the costs of proceedings for setting the ex parte decree and if cost is imposed on the defendants/plaintiffs, he will be satisfied.

11. In view of the facts and circumstances of the case narrated above, we accept this writ petition, set aside the impugned order of the learned Additional District Judge-V, Kohat in Civil Revision No.6 of 2006 decided on 20-1-2007 as without jurisdiction, without lawful authority and with no legal effect. The petitioners are however, burdened with costs of Rs.2000 (rupees two thousand) which they will pay to the plaintiffs/respondents before the trial Court. Parties are directed to appear before the trial Court on 12-10-2008. H.B.T./175/P Petition accepted.