2004 PLP 1050 (YLR)

(c) Constitution of Pakistan (1973)

Art.199

Constitutional petition

Maintainability

Where the impugned order was passed by the Court who had the jurisdiction to pass the said order and the same was neither corum-non judice nor illegal, Constitutional petition against such order would not be maintainable. Noor Muhammad v. Sarwar Khan and others PLD 1985 SC 131 ref (d) Administration of justice

Mere technicalities of procedural law should not be considered as a hurdle and may not be allowed to defeat the ends of justice. Ziaullah Khan Niazi for Petitioner. Through this writ petition the petitioner impugns the order dated 5-12-2003 passed by the Additional District Judge, Mianwali, through which he proceeded to set aside the order dated 28-11-2002, passed by the Civil Judge; whereby he had dismissed the application under Order IX, rule 7, C.P.C. of the respondent for setting aside the ex parte proceedings.

2. The learned counsel for the petitioner contends that the, ex parte order was passed on 23-5-2001 and the application for setting aside the said order was moved after lapse of one year i.e. on 18-5-2002 by respondent No.1 through his counsel Sh. Sajid Hasnat, Advocate which was withdrawn by him on 13-7-2002; that the respondent No.1 could have not filed the second application without getting permission of the Court for withdrawal of the earlier application with permission to file afresh.

3. I have heard the learned counsel for the petitioner and perused the record with his assistance. The order-sheet shows that the case was fixed for 24-4-2001 for publication of proclamation for substituted service of defendants Nos.2 to 4 respondents. Since nobody entered appearance on behalf of said defendants Nos.2 to 4 the case was adjourned for filing the written statement on behalf of defendant No.1 for 23-5-2001. On the said date also nobody entered appearance and consequently the ex parte proceedings were initiated. The order of initiating ex parte proceedings dated 23-5-2001 was void ab initio, because 23-5-2001 when the order was passed, the case was not fixed for `hearing'. Only the written statement was to be filed. While interpreting the provisions of Order IX, rules 6 and 13 and Order VIII, rule 10, C.P.C. the Honourable Supreme Court in the case of Muhammad Hussain v. Allah Dao and 13 others PLD 199.1 SC 1104 has ruled that "Date of filing of the written statement is not a date of hearing." therefore, the suit could not have been decreed ex parte for non-appearance on the date when only written statement was to be filed.

4. In this view of the matter, the order for initiation of ex parte proceedings on 23-5-2001 was illegal and void. No limitation runs for filing an application for setting aside the void order. Even otherwise, the order impugned has been passed by the learned Additional District Judge, who had the jurisdiction to pass the said order. The same is neither coram non judice nor illegal. Therefore, the writ petition is not maintainable as held in the case of reported as Noor Muhammad v. Sarwar Khan and others PLD 1985 SC

131. Even otherwise, in procedural law mere technicalities may not be any hurdle and may not be allowed to defeat the ends of justice. Resultantly this writ petition fails and is dismissed in limine. M.A.W./M-34/L Petition dismissed.