2019 PLP 43 (YLR)

MUHAMMAD AMEER BHATTI, J.

This revision petition filed under Section 115, C.P.C. has arisen out of the judgment passed by the learned Additional District Judge, Gujranwala as well as the order dated 02.06.2009 of the learned Civil Judge, whereby petitioner's application under Order IX Rule 13, C.P.C. was dismissed concurrently.

2. The brief facts giving rise to the present petition are that the respondents Manzoor Ahmed (died during pendency of the suit) and Muhammad Ilyas had instituted a suit for declaration with permanent injunction against predecessor-in-interest of the present petitioner namely Muhammad Iqbal (died during pendency of this revision petition) on 20.04.1995, which was amended on 29.09.1997 and 08.04.2002. Said suit was dismissed in default on 03.01.2001 and stood restored without issuing fresh notice to the present petitioners' predecessor, which resulted into closing of his right to defend the suit vide order dated 18.04.2002. After acquiring the knowledge, the petitioner, who is one of the judgment-debtor, brought an application under Order IX Rule 13, C.P.C. for setting-aside ex parte judgment and decree dated 20.11.2002 along with proceedings. Said application was dismissed by the learned trial court vide its impugned order dated 02.06.2009 with the observations that all possible means of service were adopted before restoration of the suit; that petitioner's counsel remained present before that Court in subsequent trial proceedings and the decree was passed after recording evidence of contesting parties. Being aggrieved the petitioner preferred an appeal and the learned first appellate court vide judgment dated 26.11.2010 dismissed the same with the following observations, made in para 7:-- "First of all, it is noted that the said ground taken in this appeal as well as during arguments advanced by learned counsel for the appellant regarding wrong address has not been taken in his original application under Order IX, Rule 13, C.P.C. where a bit divergent stance has been taken in Para No.5 of the application where it is mentioned that "the counsel appearing on behalf of applicant failed to bring to the notice of the applicant the fact that such orders and decree was passed against the applicant". Whereas in Para No.1 of his application under Section 5 of Limitation Act for condonation of delay, it has been mentioned by the appellant that "amended plaint was filed on 29.09.1997 and again amended plaint was filed on 08.04.2002. The applicant has been appearing throughout. It is only on 18.4.2004 when no fresh notice was effected on the applicant regarding amended suit." The main file has been consulted where perusal of interim order dated 06.03.2002, shows that the suit was restored and notices were ordered to be issued for 02.04.2002. The interim order dated 02.4.2002, shows that appellant who is actually a defendant No.9 in the suit was represented through his Senior Counsel Ch. Muhammad Younas Ghumman Advocate. On said date, the presence of his said counsel is very much mentioned there. Likewise, the counsel of other defendants Nos.7, 15, 16, 17 to 20 was also present. Similarly, on next date of hearing i.e. on 08.4.2002, again the presence of his counsel is marked as well as presence of counsel of other defendants mentioned above. His counsel was also present on next date of hearing i.e. 15.4.2002. The case was fixed for filing of written statement of amended plaint. On 18.4.02, none appeared from appellant's side. Consequently, his right of defence was closed. Thereafter, the said suit was contested by other defendants mentioned above. The learned trial court after framing issues and after recording evidence of contesting parties decreed the suit through impugned judgment and decree dated 20.11.2002. So from every stretch of imagination it could not be gathered that the appellant was not aware about the pendency of said suit. He assailed the order of closing of his defence dated 8.4.2002 as well as the said impugned judgment and decree dated 20.11.2002 on 26.6.2004 after elapsing of considerable period. From which he could not furnish any sufficient cause required under Order IX, Rule

13. This case very much falls under proviso 2 of said Rule, as it is proved that he was aware of the pendency of the suit, his counsel was appearing in the proceeding. He is stopped from raising other objections over the impugned judgment and decree on factual grounds as he has himself lost his said right. Though it is principle of law that one should not be condemned unheard nor technicalities should come in the way of justice but at the same time it has been laid down by Hon'ble Apex Court that law favours the vigilants and not the indolents." Hence, this revision petition.

3. Learned counsel for the petitioner vehemently contended that both the learned Courts below have committed an error by depriving the present petitioner of his legitimate right to effectively defend the suit inasmuch as the suit of respondents Nos.4 and 5, which was dismissed for non-prosecution in presence of petitioner's learned counsel, could not be restored without issuing notice to the petitioner; hence, he was condemned unheard as he was never served, therefore, the ex parte decree being in complete disregard of procedural requirement for trial of suit, is unsustainable in the eye of law. In support of this contention, reliance is placed on Ahmed Khan v. Haji Muhammad Qassim and others (2002 SCMR 664), Mehr Din through Legal Heirs v. Azizan and another (1994 SCMR 1110), Province of the Punjab through Member Board of Revenue and others v. Muhammad Hussain through legal heirs and others (PLD 1993 Supreme Court 147), Anant Ram v. Ram Saran Das and others (AIR 1936 Lahore 209), Bashir Ahmad v. Shafi and others (1985 SCMR 469), Muhammad Anwar v. Muhammad Masood Akhtar and others (1993 MLD 1889 Lahore) and Shakoor Hussain v. Muhammad Sadiq (1991 MLD 67 Lahore). It is further contended that instead of giving upper edge to the technicalities, the matter ought to have been decided on merits by referring the same to the learned trial court for decision afresh and by placing reliance on the case law cited in Province of Punjab and others v. Muhammad Farooq and others (2012 SCMR 1942), Hyderabad Development Authority through M.D. Civic Centre, Hyderabad v. Abdul Majeed and others (PLD 2002 Supreme Court 84), Abdul Karim v. Muhammad Ibrahim (1976 SCMR 79), Nasir Ali v. Umar Draz and others (PLD 2011 Lahore 599), Government of Balochistan through Secretary Revenue, Board and another v. Rashid and 3 others (2010 CLC 1496 Quetta), it is argued that the delay in filing the revision petition be condoned especially when merits of the case require setting-aside of the challenged decisions.

4. Arguments heard. Record perused.

5. It is established from the available record that respondents Nos. 4 and 5's suit, fixed for recording evidence of respondents-plaintiffs, was dismissed on 03.01.2001 owing to non-appearance of the plaintiffs as well as their counsel. The order dated 06.03.2002 reflects that the application for restoration was allowed without recording any reason inasmuch as from its demonstration it is found that neither notices were issued to the defendants nor they were heard, hence this negligence on the part of the learned trial court proves that the petitioner-defendant No.9 was condemned unheard. Hence decision of restoration of suit being contrary to the well settled principle of law 'audi alteram partem' is a nullity in the eye of law. It is expedient to reproduce the order dated 06.03.2002 which is as under:-- Although, restoration of suit's order dated 06.03.2002 which has been passed in defiance of an absolute settled principle of law being a nullity is not tenable and enough to remove along with entire superstructure built thereon additionally for missing of reasons and disregarding the mandatory provisions of law relating to service of the defendant but I deem it appropriate to further point-out the following illegalities committed by the learned trial court, made my persuasion strong to annul the whole proceedings culminating into ex parte decree being without lawful authority including the judgment of the learned first appellate Court which has also erred in law while overlooking all these incurable defects committed in the proceedings by the learned trial court causing serious miscarriage of justice.

6. Record further reveals that 02.04.2002 was fixed for service of the present petitioner and other defendants and without confirming the service of the defendants, the learned trial court on appearance of previous counsel who had been attending the suit's proceedings before its dismissal had joined the proceedings on their own or without consent-instructions of the petitioner, commenced the suit proceedings. Record further reveals that on purported counsel's demand, case was lastly adjourned on 15.04.2002 for 18.04.2002 for filing amended written statement and on said counsel's disappearance, the present petitioner-defendant No.9 was proceeded against ex parte. The demand of date for obtaining instructions to prepare amended written statement by the alleged counsel appeared on behalf of the petitioner-defendant is sufficient to hold that he had been attending the court proceedings on behalf of defendant No.9/petitioner without his fresh instructions merely on the revival of the suit under the impression or under courtesy of court call. Apparently he attended the court proceedings after restoration of suit by virtue of his Power of Attorney executed by the petitioner-defendant No.9 to attend the suit proceedings on his behalf before dismissal of the suit under the wrong impression that his power of attorney had also been revived. Obviously it had lost its efficacy/validity after dismissal of suit even dismissal in default, hence the learned counsel had no lawful authority to represent defendant No.9/petitioner without getting his fresh instructions. On the other hand it was prime duty of the learned trial court to adopt the procedure to effect the service as contemplated under Order V, C.P.C. which has been disregarded in the present case, therefore, defendants could not be blamed for not attending the proceedings. It is also settled law that application for restoration of suit should not be accepted without notice to the defendants at least, when the defendants were present at the time of dismissal of the suit for want of prosecution because of accruing valuable rights in their favour.

7. Tenor of the order proved that the application for restoration of suit was accepted straightaway without issuing any notice on first date of hearing the moment it was filed in complete disregard of procedural requirements of suit; therefore, it suffers from procedural lapse. The emphasis of the learned first appellate court and the learned trial court that the counsel had attended the court proceedings on three dates would not be helpful when ex-facie it is established from the record that there is no evidence regarding service of the present petitioner-defendant No.9. Obvious reason/ logic is that cases/disputes are between the parties not the counsel/Advocates and in such eventuality the service of the defendants/respondents was necessary so that they should be made aware of pendency of any lis against them.

8. In case of revival of the suit without notice or with notice the Power of Attorney of defendants/respondents did not automatically stand revived and the counsel should not rejoin the proceedings without obtaining fresh instructions from his client. However, in all circumstances the Court is not absolved from his/legal obligation to effect the service of the defendants/ respondents as envisaged under Order V, C.P.C. without which appearance of the learned counsel would not be correct and faithful and on his disappearance thereafter if the Court took punitive action against the defendants/respondents as happened in the case in hand would be suffered from legal infirmity.

9. The facts and legal position explained above, which are supported by the judgments rendered by this Court as well as Hon'ble Supreme Court, referred to by the learned counsel for the petitioner, are sufficient to hold that the learned Courts below have committed material illegality and irregularity and their order-judgment cannot sustain in the eye of law. In such eventuality, any delay in filing the revision petition would not be a hurdle to correct the illegality floating on surface of court record, therefore, I feel no hesitation to set-aside the ex parte decree in exercise of my suo motu revisional jurisdiction for correcting the palpable errors resulting in miscarriage of justice. Reliance is placed on Hafeez Ahmad and others v. Civil Judge, Lahore and others (PLD 2012 Supreme Court 400), relevant portion whereof is deemed expedient to be reproduced hereunder:-- "Now question arises whether suo motu jurisdiction under section 115 of the Code could be exercised by the High Court or the District Court in a case where a revision petition has been filed after the period of limitation prescribed therefor. The answer to this question depends on the discretion of the Court because exercise of revisional jurisdiction in any form is discretionary. Such Court may exercise suo motu jurisdiction if the conditions for its exercise are satisfied. It is never robbed of its suo motu jurisdiction simply because the petition invoking such jurisdiction is filed beyond the period prescribed therefore. Such petition, could be treated as an information even if it suffers from procedural lapses or loopholes. Revisional jurisdiction is pre-eminently corrective and supervisory, therefore, there is absolutely no harm if the Court seized of a revision petition, exercises its suo motu jurisdiction to correct the errors of the jurisdiction committed by a subordinate Court. This is what can be gathered from the language used in Section 115 of the Code and this is what was intended by the legislature, legislating it. If this jurisdiction is allowed to go into the spiral of technicalities and fetters of limitation, the purpose behind conferring it on the Court shall not only be defeated but the words providing therefor, would be reduced to dead letters. It is too known to be reiterated that the proper place of procedure is to provide stepping stones and not stumbling blocks in the way of administration of justice. Since the proceedings before a revisional Court is a proceeding between the Court and Court, for ensuring strict adherence to law and safe administration of justice, exercise of suo motu jurisdiction may not be conveniently avoided or overlooked altogether. The Court exercising such jurisdiction would fail in its duty if it finds an illegality or material irregularity in the judgment of a subordinate Court and yet dismisses it on technical grounds."

10. The other contention of learned counsel for the petitioner that the learned first appellate Court has also committed the illegality while refusing to consider the merits of the case as well, contrary to the settled principle of law and instead proceed with the matter through shortened procedure viz technicalities, has force. Reliance is placed on Province of Punjab through Collector, Toba Tek Singh and others v. Muhammad Farooq and others (2012 SCMR 1942), which is as under:-- "As the job of a Court is to do ultimate justice, it can look into the matter itself despite the fact that some application filed by a party might be barred by time. Any such application can be considered by the Court as a mere information. What we intend to bring home is that if merits of the case demand that the challenged order be set aside; a High Court should not avoid hearing under section 115(1), C.P.C. for which no limitation is provided, merely because the application is filed by some body who is bound by limitation. This Court in Riaz Hussain's case (2003 SCMR 181) has observed in principle that "mere technicalities unless offering any surmountable hurdle should not be allowed to defeat the ends of justice and the logic of words should yield to the logic of realities." In sequence, the case law cited in Hyderabad Development Authority through M.D., Civic Centre, Hyderabad v. Abdul Majeed and others (PLD 2002 Supreme Court 84) is also quoted wherein it has been laid down that when on merits the respondent had no case, then limitation would not be a hurdle in the way of appellant for getting justice.

11. In this view of the matter, the application filed under Section 5 of the Limitation Act bearing C.M. No.01-C/2011 seeking condonation of delay in filing the revision petition has become infructuous/ redundant, however, main revision petition is allowed; consequently, the decisions impugned passed by both the learned Courts below are hereby set-aside and by accepting the application filed by the present petitioner for setting-aside the ex parte proceedings and the ex parte judgment and decree passed by the learned trial court is also set-aside. Resultantly, the suit of respondents Nos.4 and 5 shall be deemed to be pending before the learned trial court which shall re-adjudicate the same, strictly in accordance with law. The parties are directed to appear before the learned Senior Civil Judge, Gujranwala, on 18.10.2018, who shall take on this matter either himself or entrust it to any other learned Judge.

12. As none has attended the proceeding on behalf of the respondents including the plaintiffs before this Court despite notice, hence, are proceeded against ex parte. However, the learned trial court before commencing the proceedings shall ensure their presence by adopting all the procedure provided under Order V, C.P.C. ZC/M-150/L Case remanded.