1997 PLP 461 (MLD)

3. The defendant judgment‑debtor/writ petitioner filed an application for setting aside ex parte decree and it was submitted therein that the petitioner was an old woman and had appointed Ghulam Hussain, her son as special attorney who was present in Court on 22‑2‑1986 when the hearing was adjourned to 20‑5‑1986. Unfortunately when special attorney of the petitioner and her counsel went to the Court they came to know that the suit was decreed as ex parte on 19‑4‑1986 and that the petitioner was not served and that the alleged service was fabricated and result of mala fide. Regarding absence of the learned counsel it was submitted that Malik Abdul Aziz Khamosh, Advocate was not attending his work due to the serious sickness of his wife who was admitted in Mission Hospital, Multan from 5‑4‑1986 to 20‑4‑1986. Affidavits were filed by Ghulam Hussain special attorney Muhammad Iqbal and Malik Abdul Aziz Khamosh, Advocate in support of the application. The application was contested but was accepted by the trial Court on 28‑12‑1986 on payment of cost of Rs.100. The decree was set aside and the suit was adjourned to 4‑1‑1987 for further proceedings.

4. The plaintiff filed a revision petition before the District Judge which was heard and decided by Additional District Judge, Muzaffargarh on 15‑4‑1987. The revision petition was accepted and the trial Court was directed to frame issues, afford the parties opportunity to produce their evidence in support of their contentions and then to decide the application for setting aside the ex parte order afresh. The said judgment of the Additional District Judge is impugned in the present Constitutional petition.

5. I have heard the learned counsel for the parties, gone through the file and have given anxious consideration to the fact and law involved.

6. The learned counsel for the petitioner has assailed the impugned judgment inter alia on the ground that the same was without lawful authority and that the revisional Court while setting aside the trial Court order had exercised the jurisdiction not vested in it and that the service on 18‑4‑1986 even if assumed to have been effected properly, was of no help as the trial Court could not legally fix a date which fell on "Jumatul Mubarik" and that the fixation of the date of hearing to Jumatul Mubarik was mistake on the part of the Court and the trial Court must have realized the same on the subsequent day. When the file came up before the Judge it was the duty of the Judge to take note that the parties were earlier given 20‑5‑1986 as a date for(intizar misal).

7. The learned counsel for the respondent has opposed the writ petition and has supported the impugned judgment on the ground that the writ petition was not maintainable and that the trial Court had no jurisdiction to accept the application for setting aside the ex parte decree which was barred by limitation and that the parties were at variance and it was mandatory for the Court to frame issues and provide opportunity to the parties to produce evidence.

8. I regrettably note that the trial Court issued summons for service of the parties on 25‑2‑1986 for a date which fell on Friday. I cannot assume that calendar issued by the High Court for the year 1986 was not before the Trial Court. The register was also supposed to be before the Reader on 25‑2‑1986 and I have no reason to disagree with the learned counsel for the petitioner that Friday was fixed by the Court as a result of collusion between the Reader of the Court and the plaintiff and fixation of a date for issuance of notice in such circumstances was a fraud played by the parties present. It was the duty of the learned counsel to assist the Court that 18‑4‑1986 was a closed holiday being Friday. Rule 4 of Order XVII, C.P.C. primarily deals with situation where the suit was settled down for a date which was declared a holiday such as some local holiday or any other holiday which was declared subsequently to the fixation of the suit. The trial Court should have thus taken proper notice of its mistake on 19‑4‑1986 when the case was placed before it. The parties cannot be made to suffer for the negligence of the Judge. Order XVII, Rule 4, C.P.C. gives discretion to the Court in the following words:‑‑ "and the Court may then either proceed with the suit on such date or fix some other date thereafter. " Non‑exercise of discretion by the Court in the circumstances of the present case was an act of illegal exercise of jurisdiction in proceeding to order ex parte proceedings against the defendant and then to proceed with unholy haste in recording the statement of the plaintiff and to decree the suit ex parte.

9. The powers of the revisional Court to pass the impugned order are also not unlimited. The trial Court had accepted the application under Order 9, Rule 13, C.P.C. and had set aside the ex parte decree. It is clear from the record that the application of the present petitioner was accompanied by three affidavits including the affidavit of the learned counsel for the defendant. On 22‑2‑1986 the trial Court had adjourned the case for (intizar misal) to 20‑5‑1986. If an earlier date was fixed on 25‑2‑1986 due to receipt of file from the revisional Court, the trial Court should have taken proper care before proceeding to decree the suit. He should have ordered issuance of notice for service again as the parties were very serious in persuing their respective cases. In a similar situation where appeal was dismissed by the Appellate Court their lordships in Manager, Jammu and Kashmir State Property v. Khuda Yar PLD 1976 SC 678 reached the following conclusions:‑‑ " .. The conclusion we have reached, therefore, are: firstly that it was the duty of the Additional District Judge to ascertain that the respondent had been duly served and this he did not discharge and, therefore, the case could not be called for hearing on the date, secondly, that he had acted rather mechanically without being aware of his discretionary power not to dismiss the appeal and, therefore, the order of dismissal having been made in ignorance of jurisdiction was void and a nullity." The revisional jurisdiction may be exercised only where the impugned order disclosed infirmity or lack of jurisdiction or material irregularity as mentioned in section 115, C.P.C. If authority be required Muhammad Hussain Munir etc. v. Sikandar etc. PLD 1974 SC 139 can be cited. In Malik Hadayat Ullah and 2 others v. Murad Ali Khan PLD 1972 SC 69 it was observed that before the Court could interfere under section 115, C.P.C. it had to be satisfied that the Court below had acted illegally or with material irregularity in the exercise of jurisdiction or exercised jurisdiction not vested in it by law and failed to exercise jurisdiction so vested. The trial Court was vested with the powers to set aside ex parte decree under Order 9, Rule 13, C.P.C. An order of the trial Court was justified in view of the fact that no counter‑affidavit was filed by other side. Reference may also be made to Mst. Fazal Begum v. Bahadur Khan and another PLD 1983 Lah. 365.

10. The trial Court had not exercised jurisdiction not vesting in it by law nor it had failed to exercise the jurisdiction so vested nor it had acted in the exercise of his jurisdiction illegally or with material irregularity. The discretion was properly exercised by the trial Court.

11. In view of what has been stated above I am satisfied that the revisional Court i.e. Additional District Judge, Muzaffargarh passed impugned judgment in revision on 15‑4‑1987 without lawful authority.

12. The writ petition is, therefore, accepted and impugned judgment assed by Additional District Judge, Muzaffargarh 15‑4‑1987 is declared to be of no legal effect.

13. There shall be no order as to costs. A.A./A‑82/L Petition accepted.