1984 PLP 232 (SCMR)

MIAN BURHANUDDIN KHAN, J.‑This petition is directed against the judg ment and order of the Lahore High Court, Rawalpindi Bench, dated 20‑2‑1983 passed in three C. M. Nos. 897/C, 898/C and 899/C of 1982 in R. S. A. No. 305 of 1967.

2. The Murree Improvement Trust, respondent No. 3 acquired land in Murree Hills in pursuance of the provisions of section 7 of the Punjab Development of Damaged Areas Act, 1952. Applications for allotment of plots carved out of the said area were invited by public notice dated 6‑6‑1954 by publication in the Civil & Military Gazette, Lahore by the Chairman, Murree Improvement Trust, Murree and allotments were made under the conditions of allotment embodied in the said notice that a plot out of the area bearing No. 23 measuring 0'80 acres situate at Hall Road, Murree was allotted to Mian Saeed Ahmad, Superintending Engineer, P. W. D. Lahore on the terms and conditions already notified as per memo. No. 250/C, dated 21‑6‑1954 the plot allotted to Mian Saeed Ahmad was too unwieldy because of the area ; he, therefore, asked for splitting of the plot in two parts i.e. plot No. 23 to remain in the name of Mian Saeed Ahmad and plot No. 23‑A in the name of Mst. Ismat Kamal and Mian Masood Ahmad respondents‑plaintiffs Nos. 1 and

2. The request of Mian Saeed Ahmed was acceded to on 13‑9‑1954 and the plot was divided in two parts as per the plan submitted by him with the amendment that the portion of the plat left in the name of Mian Saeed Ahmad and his two associates was numbered As 23‑A and the portion failing to the share of respondents/plaintiffs was numbered as 23‑B. The allottees of plot No. 23‑B failed to comply with the terms of allotment and did not construct any house thereon and as such the Improvement Trust resumed plot No. 23‑B on 6‑6‑1961 and later on auctioned it and the petitioner, being the highest bidder, the auction was approved in her favour. The respondents/ plaintiffs dissatisfied with this auction, filed a suit on 6‑9‑1962 for per petual injunction against the Improvement Trust and Mr. Hanif Moonnoo in the Court of the Administrative Civil Judge, Rawalpindi. Mr. Hanif Moonnoo was served in the suit and through his, special attorney he filed a reply to the application for temporary injunction pleading that he was not the auction purchaser and has been unnecessarily impleaded as a party to the suit. The Improvement Trust filed a written statement objecting to the maintainability of the suit on the ground of non joinder of the necess ary party namely Mrs. Haliman Hanif Moonnoo the petitioner who was the actual auction purchaser. The respondents/plaintiffs in their replication stated that the preliminary objection on account of non‑joinder was not admitted no action was taken by the respondents/plaintiffs to implead the petitioner and the suit proceeded ex parte against Hanif Moonnoo and judgment and decree was passed in favour of the respondents/plaintiffs. Appeal was filed by the Improvement Trust before the learned Additional District Judge, Rawalpindi wherein the address of the petitioner was given as c/o Improvement Trust, Murree and was subsequently altered to Mrs. Hanif and allottee of plot No. 23/B Bird Lodge, Murree". The appeal was allowed by the learned Additional District Judge, dismissing the suit on 7‑1‑1979. The appellate judgment and decree were challenged by the respondents/plaintiffs before the learned High Court in RSA 305/1967. In this RSA the petitioner was impleaded as respondent and same address was given i. e. c/o Improvement Trust, Murree. An attempt was made to serve the petitioner through citation by substituted service under Order V, rule 20, C. P. C. It is stated that the petitioner's counsel visited Rawalpindi to inspect the file of the Court on 18‑11‑1982 in order to prepare and contest the appeal before the High Court on 1‑i2‑1982 the actual date fixed in the appeal. Learned counsel for the petitioner Mr. Faiz Ahmad Bhatti was, however, informed that the appeal had been heard and allowed on the 17th October, 1982, and the judgment and decree of the trial Court was restored and the ,judgment of the first appellate Court was reversed.

3. The petitioner moved an application under Order XLI, rule 2 and section 151, C. P. C. for re‑hearing of the appeal which was dismissed as the date was accelerated without notice to the petitioner. Application under section 5 of the Limitation Act for condonation of delay was also filed but the C. M. applications were dismissed vide the impugned order.

4. Main contention of the learned counsel for the petitioner is that in the circumstances of the present case the ex parte decree passed is violative of the well‑established principles of law that non‑service of the notice for date of hearing entitled the petitioner to apply for rehearing of the appeal under Order XLI, rule 22, C. P. C. within 30 days of the knowledge of ex parte decree as per Article 169 of the Limitation Act that the petitioner was served with the notice of actual date of hearing i. e. 1‑12‑1982 but not with notice of hearing of the appeal before the Rawalpindi Bench of Lahore Nigh Court sometime in September, 1982 and the petitioner, as of right, was entitled to appear in the Court to contest the appeal.

5. We have gone through the various orders impugned before us and find that there teas been unnecessary hurry with the hearing of the case that the petitioner was not properly impleaded nor any occasion arose for situation to justify early hearing nor proper attempt has been made to serve the petitioner personally or to affix the notice on the permanent residence of the petitioner it was also not favourably considered that address of the petitioner who is member of a well‑known family of the area, was not known to the respondents/plaintiffs. Mr. S. M. Zafar learned counsel for the respondents/plaintiffs also did not very seriously challenge the points raised.

6. We convert this petition into appeal, set aside the order of the learned High Court dated 20‑2‑1983 and remand the case for fresh decision of appeal (RSA 305/67) after notice to the parties, expeditiously. No order as to costs. 4 M. Z. M. Case remanded.