P L D 1993 Peshawar 94 (PLP)

Facts of the case briefly stated are that Suhbat Ullah Khan plaintiff petitioner filed a suit against Haji Ghulam Akbar and others in the Court of Civil Judge, Peshawar for declaration to the effect that he and defendant No. 34 are owners in possession of land measuring 10 Kanals 6 Marlas out of total land measuring 33 Kanals 19 Marlas situated in Mauza Gulozai, Tehsil and District Peshawar. It is alleged in the plaint that the land mentioned in the heading of the plaint was the property of Alam Khan son of Muhammad Khan, predecessor- in‑interest of defendant No.34 on whose death it devolved on the plaintiff and defendant No. 34, that defendant No. 34 has sold 4 Kanals of land to Sherin Khan son of Sher Muhammad predecessor‑in‑interest of defendants 2 to 8 through registered sale‑deed, that defendant No. 34 had leased out 27 Kanals 19 Marlas of land to Sherin Khan son of Sher Muhammad predecessor‑in -interest of defendants 2 to 8 through Mutation No. 886 dated 12‑3‑1957, that Sher in deceased was in possession of land measuring 10 Kanals 6 Marlas as lessee, while from the persual of the Revenue Record it came to light tht Sherin and Ghulam Sarwar Khan defendant No.l in absence of defendant No.34 had made wrong entries in the column of cultivation and that plaintiff and defendant No.34 have not sold the land to Sherin through registered sale- deed or mutation. Defendants 35 to 45 contested the suit while ex parte proceedings were initiated against the remaining defendants. On the pleadings of the parties the learned trial Judge framed three issues.

2. The evidence of the plaintiff was completed on 8‑10‑1988 and 10‑11‑1988 was fixed for the evidence of defendants. On the said date the defendants failed to appear in Court and the case was adjourned to 2‑1‑1989. On this date the defendants again failed to appear, ex parte proceedings were initiated against them and on 15‑2‑1989, an ex parte decree was passed in favour of the plaintiff. On 3‑5‑1989, the defendants moved an application for setting aside the ex parte decree which was rejected by the learned trial Judge ‑on 24‑9‑1991. Feeling aggrieved the defendants filed an appeal in the Court of Additional District Judge, Peshawar which was accepted on 14‑10‑1992 after setting aside the impugned order dismissing the application for setting aside the ex parte decree on payment of Rs.2,000 as costs and remanded the case back to the learned trial Judge to proceed with it after allowing last chance to the defendants to adduce evidence. Dissatisfied with the above order the plaintiff‑petitioner has come up in revision petition to this Court.

3. It was contended by the learned counsel for the petitioner that the application for setting aside the ex parte decree was made beyond 30 days period prescribed under Article 164 of the Limitation Act, therefore, it was barred by time. Reliance was placed on Messrs Lahore Art Press through its Proprietor, Muhammad Mohsin and another v. National Bank of Pakistan, Anarkali Branch, Lahore (PLD 1990 Lahore page 300). It was further contended that the learned Additional District Judge in setting aside the order did not, apply her mind whether there existed any reasonable ground for condonation of delay in filing the application or not, therefore, she acted illegally and with material irregularity. That the learned Judge travelled beyond the scope of the appeal by adverting to the merits of the case. That the applicants did not appear in support of their application, therefore, it was a case of no evidence from their side, rather the order wag based on the statement of their counsel which was contradictory to the facts of the case. Lastly that the learned Additional District Judge has based her order on inferences erroneously drawn from the evidence on record.

4. From the persual of the record it is evident that plaintiff in his suit challenged the correctness of the entries in the Revenue Record in which the names of the defendants 2 to 8 are entered in the column of cultivation, to be illegal and ineffective on his rights. The suit was contested by the defendants by filing their written statement giving rise to the framing of several issues on which the parties were to lead evidence in support of their respective pleas. It is undisputed that presumption of correctness is attached to the entries in the Revenue Record unless the same are rebutted and proved to have been erroneously made without any legal and solid foundation. Plaintiff produced his evidence whereafter on 8‑10‑1988 the case was adjourned for the defendants' evidence. As observed by the learned trial Judge the parties were attending the Court, but the case was to be adjourned for one reason or the other. The defendants made no efforts to lead their evidence when ultimately ex parte proceedings were ordered as neither the defendants were present on 15‑2‑1989 nor their counsel. `However, in the application for setting aside the ex parte decree made by the learned counsel for the petitioner, it was alleged that he had inadvertently noted down 2‑5‑1989 as the date of hearing after the case was adjourned on 15‑2‑1989. The contents of the application were supported by an affidavit by the learned counsel. He appeared in the witness‑box and made his statement in support of his application and stated that on 15‑2‑1989 he had appeared in Court but at that time the case was not yet called for hearing, therefore, he left the Court to attend to his other cases. Later on when he came to the Court he found that it had been adjourned to 2‑5‑1989 which he noted down in his diary. However, on the date he came to know that the suit was decreed against his clients ex parte on 15‑2‑1989, while ex parte proceedings were ordered against them on 2‑1‑1989 and on the very second day of the knowledge he made the application. He stated in his cross‑examination that one Mosam Khan used to appear in Court on behalf of the defendants but he was murdered during pendency of the suit. That Pirzada Noorul Baser defendant sometime personally attended the Court but generally due to his engagement in business he remained out of station.

5. The learned trial Judge did not accept the statement on the ground that neither the original diary was produced in Court at the time of recording his statement nor its copy was placed on file. The learned trial Court failed to notice that the learned counsel for the decree‑holder did not challenge that part of his statement in cross‑examination. The contents of the application supported by an affidavit and the statement of the learned counsel made in Court which was not challenged in cross‑examination, should not have been lightly ignored.

6. Unfortunately the Subordinate Courts while proceeding ex parte against the defendants and in granting ex parte decree in plaintiffs favour did not apply their mind to the merits of the case. It has been time and again emphasized by the superior Courts that even if the Court is to proceed ex parte it is its duty to go through the allegation made in the plaint and in support thereof the materials placed on file and give its decision thereon. When there are long‑standing entries in the Revenue Record to which presumption of correctness is attached under the law and such entries are challenged, in the absence of any evidence grant of ex parte decree declaring such entries to be illegal and ineffective on the plaintiffs rights would not be justified.

7. There is no force in the arguments of the learned counsel for the petitioner that in the instant case the application for setting aside ex parte decree made beyond 30 days of passing of the ex parte decree was barred by time. Considering the statement of the learned counsel for the petitioner referred to above the period of limitation in the present case would commence from the date of knowledge and not the date of decree. The learned Additional District Judge having set aside the order of the trial Judge after proper appraisal of the evidence on the record no interference is required in revisional jurisdiction, moreso when the case has to be decided on merits after affording sufficient opportunities to the parties to E prove their case. This revision petition is, therefore, dismissed in limine. A.A./1446/P Revision dismissed.