1997 SCMR 1118 (PLP)

Laws Cited

Representation

• ‑‑‑‑O.XVII, R.3‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Ex parte decree‑‑‑Trial Court dismissed defendant's application for setting aside such decree‑‑‑Appellate Court set aside ex parte decree‑‑‑High Court in revision set aside finding of Appellate Court and restored that of Trial Court ‑‑‑Validity‑‑ Defendants contended that after remand of case in earlier round of litigation, notice of date of hearing fixed by trial Court should have been served upon them but from diary sheet produced there was no indication that such notice was issued to them; that after having been declared ex parte, defendants were still entitled to notice for they had right to participate in proceedings before Court; and that High Court had erred in holding that application for setting aside ex parte decree was barred by time‑‑‑Leave to appeal was granted to consider the contentions raised by defendants.
• Muhammad Hussain Lughmani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners.
• Date of hearing: 10th January, 1996.
• Malik Fazal Hussain, Advocate Supreme Court and Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for (absent) Respondents Nos. l and 2.
• 2. Respondents Nos.l and 2 had filed suit on 19‑5‑1982 praying for declaration and permanent injunction against the petitioners. Some of the defendants appeared and filed written statement while others remained ex pane. Issues were accordingly framed and plaintiffs' evidence was recorded. The Senior Civil Judge, Batgram, before whom the suit had been filed, was of the opinion that he had no jurisdiction, and therefore, referred the case to the District Judge and the parties were directed to appear before him (District Judge) on 11‑12‑1982. On that date the learned District Judge transferred the case to the Court of Senior Civil Judge, Mansehra for trial and directed the parties to appear before the transferee Court on the same date. It seems that the learned Senior Civil Judge, Mansehra by order dated 11‑8‑1983 declared the petitioners ex parte and proceeded with the matter. On 5‑9‑1984 evidence of the plaintiffs was closed under Order XVII, rule 3, C.P.C. and the case was adjourned to 31‑10‑1984 for recording the evidence of the defendants. Before the evidence could be recorded, the learned District Judge requisitioned the file and set aside the order of the Senior Civil Judge and remanded the case to him for recording the remaining evidence of the plaintiffs/respondents, but no date of hearing was fixed. From the order sheet No.32 dated 6‑11‑1986 recorded by the learned Senior Civil Judge it transpires that the Advocates of the parties were present and the case was adjourned to 18‑12‑1986 for recording the evidence as directed by the learned District Judge. Subsequent order‑sheet shows that the defendants were present and respondents Nos.3 and 4 were declared ex parte as they had not filed written statement. On 23‑7‑1987 it was recorded that the plaintiffs' advocate and representative of the defendants and Government Pleader for respondents Nos.3 and 4 were present and date was given for filing written statement, but as it was not filed on 16‑9‑1987, they were declared ex pane. On 27‑10‑1987 it was recorded that the defendants were not present and after recording the statement of the attorney of the plaintiffs, sides were closed and the case was adjourned‑ to 30‑11‑1987 for arguments. On 25‑11‑1987, it was recorded that as 3‑11‑1987 had been declared holiday due to Municipal Elections, the case was adjourned to 16‑1‑1988 and notice of change of date was pasted on the notice board. A note by the Reader of the Court dated 20‑12‑1987 shows that the Presiding Officer was on casual leave, therefore, the case was to be taken up on 16‑1‑1988. On that date the arguments were heard ex parte and judgment was announced on 1‑2‑1988 by which an ex parte decree was passed. The petitioners filed an application for setting aside the above decree mainly on the ground that after the remand from the Court of the learned District Judge, no notice was issued to them and they had never appeared before the trial Court. This application was dismissed, but in appeal, a learned Additional District Judge set aside the decree. The respondents (Nos. l and 2) filed revision application before the High Court, which was allowed by the impugned judgment.

Headnotes / Summary

Judgment & Decree