1992 PLP 1635 (MLD)

In this revision petition order, dated 10‑1‑1990 passed by the learned Additional District Judge, Bhakkar dismissing the petitioner's appeal against the order, dated 20‑4‑1957 passed by the learned trial Court by which application moved by the petitioner under Order 9, Rule .13, C.P.C. for setting aside the ex parte preliminary decree in a partition suit was dismissed, has been challenged.

2. Respondent No.1 Allah Diwaya alongwith Mst. Suhhai widow of Ghulam Hussain and Mst. Gumali, sister of Ghulam Hussain deceased tile‑d ii suit for partition of the disputed property against the petitioner. According to the plaintiffs the property after the death of Ghulam Hussain was inherited in the parties, therefore, the same was in their joint ownership The petitioner contested the suit. Her case was that the property was owned by her exclusively as the same had been given to her by Ghulam Hussain deceased her husband in lieu of her dower amount as such, it did not vest in Ghulam Hussain at the time of death, as such, it was not jointly owned property.

3. The learned trial Court after framing issues and recording evidence through judgment, dated 10‑7‑1984 dismissed the suit holding that the property was exclusively owned by the present petitioner. The respondents/plaintiffs challenged this judgment and decree before the learned lower Appellate Court in appeal. In appeal both the parties agreed that the issues may be re‑cast and the case remanded to the learned trial Court for fresh decision after recording further evidence. The learned lower Appellate Court on 5‑6‑1986 recast the issues and remanded the case to the learned trial Court for recording further evidence and disposal of the same afresh.

4. After remand the case was fixed before the learned trial Court on 18‑10‑1986 for recording the evidence of the plaintiff. On this date the learned Presiding Officer of the Court was on leave, therefore, the Ministerial Officer of the Court (Reader) adjourned it to 26‑10‑1986. From this date the case was adjourned to 2‑12‑1986, then to 2‑12‑1986 and to 9‑12‑1986. From this dale it was adjourned to 22‑12‑1986 on which date ex parte preliminary decree was passed. The ex parte proceedings were taken against the petitioner for her non‑appearance on 2‑12‑1986 because on the previous dates according to the order of the Court counsel for both the parties were present though their names have not been mentioned in the order‑sheets.

5. On 4‑Y‑1987 the petitioner moved an application under Order 9, Rule 13, C.P.C. seeking setting aside of the ex parte preliminary decree. The main ground urged in the petition was that the petitioner was not in the knowledge of fixation of the case on the abovementioned dates. The photostat copy of the envelope of the Advocate as also photostat copy of the relevant part of the diary of the learned counsel were appended with the application to substantiate the plea that the next date of hearing in the suit was through mistake noted as 21‑2‑1987, when the case was adjourned to 26‑10‑1986 by the Reader on 18‑10‑1980.

6. This application was contested by the respondents who filed written reply. The correctness of the pleas raised by the petitioner was disputed. The learned trial Court without framing any issues and affording opportunity to the petitioner to produce evidence in support of her case that she did not have the knowledge of fixation of the case on the relevant dates through order, dated 20‑4‑1987 dismissed the application basing his decision on the said orders in which counsel of the parties were shown to be present. The appeal filed by the petitioner has been dismissed by the learned lower Appellate Court on the same ground.

7. Learned counsel for the petitioner submitted that in the previous round of litigation sufficient evidence was produced by the petitioner on the basis of which the suit was dismissed and the petitioner was held to be the exclusive owner, therefore, even if the Court was to pass judgment on merits ex parte against the petitioner, the evidence already led by the petitioner should have been taken into consideration whereas the learned trial Court acted mechanically to proceed to pass ex parte decree without taking into consideration and discussing the evidence produced by the petitioner which was available on the record. He also maintained that no issue was framed and no opportunity was granted to the petitioner to substantiate through evidence her plea that neither she nor her counsel was present in the Court on the relevant dates and that the date in the case was through mistake noted as 21‑2‑1987, as such, the orders passed by both the Courts below suffer from material irregularity and illegality as the same have been passed on no evidence except taking into consideration the orders passed by the Court, the correctness of which, had been questioned.

8. The submissions have force. I would have remanded the case for framing the issues in the application for setting aside of ex parte decree and disposal of the same after recording evidence but in order to avoid the parties from further agony of protracted litigation 1 in my discretion proceed to decide the matter instead of remanding the case. The petitioner has placed on record an affidavit sworn by Malik Fateh Sher, Advocate, District Courts, Bhakkar alongwith the revision petition in which he has categorically deposed that on 18‑10‑1986 the learned Presiding Officer of the Court was on leave and the Reader of the Court according to him adjourned the case to 21‑2‑1987. He has deposed that neither he nor the petitioner was present in the Court on 26‑10‑1986, 2‑11‑1986, 2‑12‑1986, 9‑12‑1986 and 22‑12‑1986 and they did not even otherwise had the knowledge of the fixation of the case on the said dates. No counter‑affidavit has been placed on the record by the respondents or of the learned counsel who appeared on behalf of the respondents before the learned trial Court. In the order‑sheets names of the learned counsel have not been mentioned who appeared for the parties. The valuable rights in the properties of both the parties arc involved, therefore, it is in the interest o justice that the suit should be decided after affording opportunity to the parties to lead evidence on the issues recast by the learned lower appellate Court in the remand order as the law favours adjudication of the rights of the parties on merits rather than disposal of the same in a summary manner.

9. For the foregoing reasons this revision petition is accepted. The: impugned orders, dated 20‑4‑1987 and 10‑1‑1990 passed by the two Courts below are set aside. The application ('sled by the petitioner under Order 9, Rule .13, C.P.C. for setting aside the ex parte preliminary decree, dated 22‑12‑1986 passed by the learned Trial Court is set aside and the suit restored. The learned trial Court shall proceed with the suit as directed by the learned lower Appellate Court in the remand order, dated 5‑6‑1986. There will be no order as to costs. The petitioner and respondent No.1 who are represented today are directed to appear before the learned Trial Court on 16‑4‑1992 who after procuring the attendance of the other plaintiffs shall decide the suit within four months from the date of attendance of all the parties before him. A.A./J‑13/L Case remanded