2016 PLP 1 (YLRN)

Void order

Limitation would not run against a void order, rather same could be ignored and might not be allowed to stand thereagainst. [Paras. 5 and 6 of the judgment] Muhammad Raz Khan v. Government of NWFP and another PLD 1997 SC 397 rel. JUDGMENT MUHAMMAD YOUNIS THAHEEM, J.

This judgment is directed to dispose of Civil Revision petition filed against the order/judgment dated 07.06.2010 of learned Additional District Judge, Lakki Marwat vide which appeal against the order dated 10.11.2009 of learned Civil Judge-II, Lakki Marwat was dismissed.

2. Brief facts of the case are that present respondent instituted a civil suit for malicious prosecution and claiming damages to the tune of Rs.23,500/- to be recovered from the petitioner/defendant on account of false involving and charging in an untraced case FIR No.70 dated 25.02.2002 under sections 457/380, P.P.C. Police Station Naurang. Where the petitioner was appointed as ASI. The learned trial court seized of the matter summoned the petitioner, who on appearance submitted his written statement on 07.11.2008 and upon divergent pleadings of the parties issues were framed on 21.11.2008 and case moved forward for recording of evidence of plaintiff. The petitioner moved an application for his exemption on 02.02.2009 before the learned trial court on the ground mentioned therein, inter alia, the worst law and order situation in his village and inability to move out of his village. The exemption was granted only for that day and the case was posted to 13.02:2009 for replication, but on the next date i.e. 13.02.2009 the petitioner was placed ex parte and ultimately suit was ex parte decreed vide order and decree dated 20.05.2009. 3 The respondent/ decree holder filed execution petition for realization of decreetal amount against petitioner/ judgment debtor. The petitioner on appearance submitted application for setting aside ex parte decree on 14.11.2009 to which respondent submitted replication ,on 25.11.2009. The learned Executing Court after hearing arguments of learned counsel for the parties dismissed the application on 27.01.2009 on the main ground that the application was filed after limitation period of 30-days. The petitioner being feeling aggrieved assailed the said order dated 27.01.2009 before the learned District Judge, Lakki Marwat, but with no premium. Hence, the instant revision petition before this Court.

4. The respondent despite repeated summons and publication in daily Pakistan on 03.07.2013 did not turn up hence, placed ex parte. Arguments of learned counsel for the petitioner heard and available record perused.

5. Perusal of the record reveals that during the trial vide order sheet dated 02.02.2009 on the application of the petitioner he was exempted from his personal appearance for that day and office was directed to issue notice to him for pursuing his case for 13.02.2009, but record reveals that no such notice was issued by the office in his name and despite that on the next date i.e. 13.02.2009 ex parte proceeding was initiated against the petitioner, and ultimately ex parte decree was passed on 20.05.2009. As no notice was issued against the petitioner in compliance of order sheet dated 02.02.2009, hence, order passed for ex parte proceedings by the learned trial court is against the law, void ab initio. The whole edifice built on such a defective proceedings was bound to crumble down. Limitation would not run against a void order, rather same could be ignored and might not be allowed to stand thereagainst. Wisdom can be derived from judgment of Hon'ble Supreme Court titled "Muhammad Raz Khan v. Government NWFP and another (PLD 1997 SC 397) wherein it is held: "There is no cavil to the proposition that normally constraints of limitation do not apply against void orders as held in case of Muhammad Shafi v. Mushtaque Ahmad 1996 SCMR 865".

6. Both the learned courts below have mis-read and non react the record particularly order sheet dated 02.02.2009 and did not appreciate this significant aspect of the case and thereby fallen into an error by rendering impugned orders and ex parte decree.

7. For the reasons discussed above, the instant revision petition is allowed impugned orders/judgments and ex parte decree are set aside and the case is remanded back to the learned trial court for trial afresh from the stage before where the petitioner was proceeded ex parte. Learned trial court is directed to issue notice to the plaintiff for perusing his case and decide the same within a period of six months if not earlier than that. YN/355/P Petition allowed.