P L D 1982 Lahore 62 (PLP)

This writ Petition challenging the validity of the order of the learned Senior Civil Judge, Sheikhupura, respondent 3, directing revival of the suit for possession by pre‑emption of 485 kanals, 1 marla of land in dispute situate in the area of village Madhodas, Tehsil Nankana Sahib, district Sheikhupura, brought by respondents 1 and 2 against the petitioners and continuance of its trial proceedings arises out of the following circumstances On the 10th January, 1976, respondents I and 2 instituted the suit against the petitioners, without indicating that petitioners 1 and 2 minors, in the Court of the learned Civil Judge, Nankana Sahib. On the llth October, 1976, the suit was decreed ex parte. On the 12th November, 1976, the petitioners moved application under Order IX, rule 13 of the Code of Civil Procedure for setting aside the ex parte decree secured by respondents 1 and 2 against them. On the 15th January, 1977, application was withdrawn on behalf of the minor petitioners 1 and 2 who had by that time invoked the extraordinary jurisdiction of this Court for getting declared the ex parte decree to be without jurisdiction and legally ineffectual. Their writ petition was accepted and the decree passed against them was declared to be without lawful authority and of no legal effect. The Intra‑Court appeal preferred by respondents l and 2 against the order of the Court was dismissed and so was their petition for special to appeal to the Supreme Court as it was withdrawn by them. Thereafter they moved application under section 151 of the Code of Civil Procedure before the learned trial Court for revival of the suit. The proceedings were transferred to the Court of the learned Senior Civil Judge, which granted the application and proceeded with the trial of the suit. As there could be no question of partial pre‑emption the ex parse decree was conceded by respondents 1 and 2 to be deemed to have been set aside against all the petitioners.

2. The petitioners applied to the learned Senior Civil Judge for refraining from handling the suit as according to them the order of this Court setting aside the ex parte decree against petitioners 1 and 2 was intended to put a dead stop to any further proceedings in the suit which was to be taken to have been dismissed. However, their plea did not prevail with the learned trial Judge who chose to continue with the trial. Feeling aggrieved they have initiated the present action.

3. The argument of the learned counsel for the petitioners that as this Court annulled the ex parte decree and did not pass any order remanding the suit for fresh trial the learned Court below could not have revived the proceedings can be accepted only with a grain of salt. What this Court declared was that the ex parte decree against the minor petitioners 1 and 2 was without lawful authority and of no legal effect ; it did not record dismissal of the suit. Reduction of the ex parte decree to a nullity could not IA operate to wipe out the proceedings taken earlier in the suit which had to be restored relegating the parties to the position which they occupied at the time when the illegality occurred in the proceedings. Therefore, the course adopted by the learned trial Court reviving the suit, which finds endorsement from the rule laid down by the Supreme Court of Pakistan in Ghulam Hussain v. Ghaus Bakhsh 1968 S C M R 991, cited at the bar by the learned counsel for respondents 1 and 2, is quite in order. There is no force in this petition which is dismissed. However, the parties are left to bear their own costs. S. Q, Petition dismissed.