1993 PLP 1889 (MLD)

(4)??????? Whether the suit is bad for mis-joinder of causes of action? It was significant to observe that no issue on adverse possession, and, consequent acquisition of prescriptive title to the land in dispute was framed by the trial Court. Upon settlement of issues, the suit was adjourned for evidence of defendant No.4 (Ch. Jameel Dad) on 12-2-1979. On the adjourned date, parties agreed not to lead evidence and the suit was adjourned for its arguments on 28-2-1979. Arguments were heard on the adjourned date and the matter was postponed for pronouncement of judgment. Thereafter, few more adjournments took place as the parties were negotiating for a compromise. Eventually, on 19-7-1979, defendant No.4 recorded his statement wherein he stated that except for his 4-1/4 acres of land, he had no objection to the decreeing of the suit in favour of respondent No.1. Counsel for respondent No.l agreed to his statement on the same date. The trial Court took down the statement of the counsel for respondent No.l. It was signed by him. On the basis of the above agreement, the-suit was decreed, on 19-7-1979, by the trial Court at Depalpur. Two decree-sheets were prepared by the trial Court. One was prepared on 14-12-1978 in favour of respondent No.l against Muhammad Siddique and Mst. Hajran (defendants Nos.l and 2) and the other on 19-7-1979, in favour of respondent No.l against Jameel Dad, defendant No. It was surprising to observe that defendant No.3. Anwar son of Niaz Muhammad was not noticed in either of the two decrees, prepared by the trial Court. Nor was there any ex parte judgment against him on file of the trial Court. It was more surprising to notice that though ownership rights were claimed on account of holding the land adversely, neither the copies of the revenue papers showing ownership of the land in dispute and possession on it were annexed with the plaint nor produced at the trial. Similarly, legal status of defendants Nos. 1 to 4 regarding the land in dispute or their interest in. it was not shown in the pleadings. Yet. the trial Court decreed the suit in full on account of adverse possession asserted by respondent No.l. There was no proof on record that the trial Court had ever issued summons to defendant No.3 Anwar son of Niaz Muhammad for his appearance in Court. Further, there was no record of his being served in the suit. Nonetheless, the trial Court condescended to declare him ex parte at the trial on 14-12-1978 and condemned him unheard. There was another striking omission, and, that was that the trial Court did not record any evidence in regard to defendant No.3. How he came to decree the suit on account of adverse possession, more particularly, against defendant No. 3 was incomprehensible, and, yet, he did it. On 24-2-1981, petitioner applied for setting aside of the ex parte decree against him. Petition was filed under Order IX, rule 13, Civil P.C. read with its section 12(2). It was asserted that the petitioner had no knowledge of the suit and the ex parte decree; he was not served in the suit and the ex parte decree was fraudulently procured. It was further asserted that he was apprised of the ex parte decree upon his visit to the village Patwari for obtaining copies of the revenue papers. Main petition was accompanied by a petition under section 5 of the Limitation Act, 1908 for condonation of delay. This petition was supported by his affidavit. Respondent No.l contested the application for setting aside of the ex parte decree. It was submitted that the application was barred by limitation; petitioner was duly served in the suit and respondent No.1 was possessed of its proof and since he intentionally failed to appear and defend the proceedings against him, there was no sufficient cause made out for setting aside of the ex parte decree. On 2-3-1986, petition for setting aside of the ex parte decree was dismissed for failing to deposit the process-fee for summoning the original file of the suit. In revision, this order was set aside on 1-10-1986, by Additional District Judge, Okara and the petition was remanded for trial on merits. On 18-10-1987, the trial Court framed following issues for determination:

(1)??????? Whether the application is defective in view of P.O. Nos.l, 2 and 5? If so, to what effect? (2)??????? Whether the respondents are entitled to receive special costs from the petitioner? (3)??????? Whether the petition is barred by time? (4)??????? Whether the defendant wilfully neglected to contest the main suit? If ??????????? so, to what effect? (5)??????? Whether the ex parte decree dated 19-7-1979 against the petitioner is liable to be set aside in view of the averments made in the plaint? (6)??????? Relief. Petitioner appeared as his own witness as P.W.1 to support averments in the petition for setting aside of the ex parte decree. In his examination-in-?chief, he referred to 25 Kanals and odd Marlas of land which respondent No.l had taken in the ex parte decree. In cross-examination, he admitted that Ch. Jameel Dad had filed a civil suit against him in which Rana Muhammad Ashraf was his counsel; civil suit was dismissed and in course of its trial, his counsel had questioned Ch. Jameel Dad that the suit was decreed. Respondent No. 1 did not give oral defence and relied merely upon copy of a statement by Ch. Jameel Dad as P.W. 3 in the civil suit in re: Ch. Jameel Dad v. Niaz Muhammad son of Rehmat Ali and Mst. Hakim Bibi recorded 6n 13-7?1980 ExhA-1 and copy of an application for the impleadment of respondent No.l (Ahmad Masood Akhtar) who had instituted a suit at Lahore. Application is dated 21-7-1979. The application was tiled by Ch. Jameel Dad. Upon basis of the above material and its scrutiny, the trial Court found that the petitioner had knowledge of proceedings against him prior to 13-7-1980 and neglected to appear in them and his petition for setting aside of the ex parte decree was barred by limitation and there was no sufficient cause for condonation of its delayed filing out of time. Hence, it dismissed the petition on 31-1-1990. Appeal from the order was also dismissed on 13-10-1991 by, Additional District Judge-11, Okara and the ex parte decree thus was maintained. Ch. Arshad Mehmood, Advocate, learned counsel for the petitioner argued that ex parte decree was procured by fraud and mispresentation, therefore, it was liable to be quashed, under section 12(2), Civil P.C. within three years of the period commencing from the discovery of necessary particulars of fraud and misrepresentation. He also argued that without recording any evidence, suit based on adverse possession could not have been decreed ex parte on the adjourned date of hearing. Learned counsel referred to the cases of Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies, PLD 1964 SC 97, Malik Muhammad Nazir v. Mian Abdur Rehim and another PLD 1968 Lahore 792, Messrs Rchman Weaving Factory (Regd.), Bahawalnagar v. Industrial Development Bank of Pakistan, P1,D 1981 SC 21, National Bank of Pakistan v. The Additional District Judge, Lahore and 2 others PLD 1985 Lahore 326, Mst. Wazir Begum and 4 others v. Mst. Shamim Javaid and 4 others, 1988 CLC 806, Iqbal v. Mst. Jaianan Bibi 1991 CLC

553. In nutshell, the emphasis of learned counsel for the petitioner was that without service of summons and taking of ex parte evidence against the petitioner, the ex parte decree was null and void and the Court must set it aside for removing it from the record for trial of the suit on merits in accordance with law. It was urged that in the existing circumstances, the case was taken out of Article 164 of the Limitation Act and covered by residuary Article 181 of the Limitation Act which prescribed a period of three years. Learned counsel for respondent No.1, except for plea of bar of limitation based on Article 164 of the Limitation Act could not defend the ex parte decree on merits. It was common ground that the petitioner was not served in the suit; no summons was ever issued to him or attempted to be served upon him. The trial Court, in oblivion of the true record mistakenly placed him ex parte. Three of the defendants conceded the suit and recorded their statements on different dates of hearing. Their shares in the land in dispute were not particularized in plaint. One of the defendants was real brother of respondent No.l. No proof was taken against the ex parte petitioner. No good reason was given for bye-passing the imperative requirement of taking ex parte proof at the adjourned hearing. Record gave a clear impression of a sloven trial by the trial Court. Ex parte decree without service of summons and hearing of the petitioner was a non est which it would not be difficult for the Court to ignore without restraint of any limitation. Petitioner was not served with summons and he gained knowledge of the ex parte decree much later. Ex parte decree was made against the petitioner in complete disregard. of procedural requirements for trial of a suit. It had the taint of fraud also. In my opinion, the question of limitation for setting aside of such a decree was governed by Article 181 of the Limitation Act, as held by the Supreme Court in case of Messrs Rehman Weaving Factory (Regd.), Bahawalnagar PLD 1981 SC

21. Even if the case was squarely governed by Article 164 of the Limitation Act, I would have no hesitation to vacate the ex parte decree in suo motu exercise of revisional jurisdiction by this Court for correcting the palpable errors and miscarriage of justice. Knowledge visualized in later part of Article 164 means something more than mere knowledge that a decree had been passed in some suit in some Court against the applicant. 1t means that the applicant must have positive knowledge not merely that a decree has been passed by some Court against him, but that a particular decree has been passed against him in a particular Court in favour of a particular person for a particular relief. In the instant case, the lower Courts were unnecessarily obsessed by a stray statement in cross-examination of A.W.l about his knowledge for holding that the application for setting aside of the ex parte decree was barred by limitation. It was a mere superficial approach. Other important facets of the case were completely overlooked by them for avoiding the decision of the dispute on its merits in accordance with law. It was held in Haji Karamat Hussain v. Naik Khan Muhammad, 1986 CLC 6 (Quetta), that "Knowledge of the institution of the suit even derived by the defendant aliunde is not sufficient to dispense with the proper service of the summons, as envisaged by the rules of the C.P.C. All available steps to effect proper service must be made before resort is had to the substituted service through publication. I am of the considered view that a defendant is entitled to have the ex parte decree set aside against him, if the summons arc not duly served, even when the defendant was aware of the institution of the suit against him". The facts of the present case stand at a much higher level. Herein, summons were neither issued nor served at all upon the petitioner. His was a case of virtual condemnation without notice and hearing. How could such a decision given by a Court of law be upheld to sanctify the rights generated by it. I really found it difficult to understand as to how a Judge of any experience could have passed such an ex parte judgment and later decline to set it aside upon a chance being provided to him for correcting the mistake. Upon the aforesaid view of record and law, I shall allow the revision with costs; set aside the impugned orders of lower Courts refusing to set aside the ex parte decree passed on 19-7-1979 as also the decree passed on 14-12-1978 and direct retrial and decision of the civil suit afresh in accordance with law. Copy of the judgment may be sent to the Civil Judge, wherever he is posted. A.A./M-1066/L?????????? Revision accepted.