2009 PLP 1868 (YLR)

SHEIKH HAKIM ALI, J.

In all the writ petitions bearing Writ Petitions Nos. 321 of 2006, 322 of 2006, 323 of 2006, 324 of 2006 and 325 of 2006 titled as (Muhammad Akhtar v. Nazim and others) identical 4uestions of law and facts have been raised, so these writ petitions are being disposed of through this single order.

2. In all these writ petitions, respondent No.4, had filed an application/ suit for recovery of Rs.10,000 on the basis of supply of pesticide to the writ petitioner, before Nazim Union Council No.41, Mouza Bounga Lashkari, Shahpur, Tehsil Hasilpur against each writ petition. Notice was issued to the writ petitioner but ultimately that was proceeded against ex parte and ex parte decree was passed on 1-10-2003, 16 aggrieved from that order, the instant, writ petition was filed.

3. Learned counsel appearing on behalf of the writ petitioner submits that ex parte judgment and decree was passed by the Chairman, Conciliation Court on 1-10-2003 against the defendant/petitioner without serving any notice upon him and after getting service through citation in Newspaper. Learned counsel submits that according to section 6 of the Conciliation Courts Ordinance, 1961, the Conciliation Court of Union Council, No.41 could have jurisdiction to entertain the suit as against the defendant who was resident of the same Union Council otherwise the suit could not be filed. He has also raised question about the constitution of the Conciliation Court. According to the learned counsel for the petitioners, the petitioners were never served with any notice and they had not appeared and consented for the constitution of Conciliation Court. In such cases when there was a failure in appearance or any consent having not been given, the Conciliation Court had to issue a failure certificate and had not to pass any ex parte decree. Learned counsel has referred to Rule 10(2) of the Conciliation. Courts Rules, 1962.

4. On the other hand, learned counsel appearing on behalf of the plaintiffs/ respondents of all the writ petitions submits that writ petitioners had got the remedy of appeal before learned District Judge, so the writ petitions were not competent directly in this Court and these may be dismissed. Learned counsel has referred to 2003 CLC 391, 2003 CLC 1030 and 2003 YLR 2398.

5. After considering the arguments of both the learned counsel and from the perusal of the record, I have found that the applications/suits which were filed before Nazim, Union Council No.41 displayed that the defendant of that application was resident of Tehsil, Mailsi while the plaintiffs/petitioners were residents of Tehsil Hasilpur, therefore, from the address even which was displayed and entered by the plaintiffs/applicants himself, it was evident that both the parties were not resident of the same Union Council. Therefore Nazim or Conciliation Court of Union Council No.41 at Hasilpur had no jurisdiction to entertain and adjudicate the suits/applications. As regards the question raised by the learned counsel for the respondent that the remedy of appeal was available to the writ petitioners therefore the direct writ petitions in this Court were not competent and these could not be entertained because of the judgments and decrees passed by the Nazim/Conciliation Court, having no jurisdiction to entertain the suits/applications above-noted. In these affairs, the availing of remedy of appeal was not necessary because this Court has got jurisdiction to entertain the suits/applications which have stemmed out from such judgment and decree which have been passed without jurisdiction. Therefore, the instant writ petitions can be entertained directly. Moreover, at this stage when the writ petitions have been admitted for regular hearing, the petitioners cannot be directed to file appeal. Therefore by accepting these writ petitions, the judgments and decree of Conciliation Courts are set aside. H.B.T./M-391/L Petition accepted.