MUHAMMAD SHARIF Versus RAZA ALI KHAN

This petition under section 115, C.P.C. calls m question the legality and propriety of order dated 8‑12‑1979 passed by the learned Additional District Judge, Kasur whereby he accepted the appeal filed by the respondents and set aside decree dated 17‑12‑1973 of the learned trial Court and directed the learned Civil Court to proceed further with trial of the case.

2. The relevant facts of the case are that the petitioner instituted a suit for permanent injunction against the respondents restraining them to dispossess him from the suit property. On 1‑6‑1971 written statement was filed by the respondents. The case remained pending for sometime before the Civil Judge, Chunian. On 25‑9‑1972 the District Judge, Lahore transferred the case and directed the parties to appear before the Senior Civil Judge, Lahore on 4‑10‑1972. On 26‑4‑1973 Mr. Masood Ali Khan, Advocate appeared on behalf of the counsel for the defendants and‑the case was adjourned to 23‑5‑1973. On 23‑5‑1973 Kh. Zia‑ud‑Din, Advocate appeared on behalf of defendant No. 1 and the case was adjourned to 10‑7‑1973 for the service of defendants Nos. 2 to 4. On 10‑7‑1973 Kh. Zia‑ud‑Din, Advocate again appeared on behalf of defendant No. 1 (Rashid Ali Khan the predecessor‑in‑interest of respondents Nos. 1 and 2) and the case was adjourned to 10‑9‑1973. On 10‑9‑1973 again Kh. Zia‑ud‑Din, Advocate appeared on his behalf and the case was adjourned to 10‑11‑1973 for service of defendants Nos. 2 to 4 through publication in the newspaper. On 10‑11‑1973 none appeared on behalf of defendant No. 1 nor anyone appeared on behalf of defendants Nos. 2 to 4 despite service through publication m the newspaper. The learned trial Court proceeded ex parte against them. The case was, however, adjourned for ex parte evidence of the plaintiff on 26‑11‑1973. The evidence was recorded by the learned Senior Civil Judge, Lahore and the case was adjourned for arguments on 29‑11‑1973 and thereafter on 5‑12‑1973. Ultimately on 17‑12 1973 ex parte decree was passed against the defendants.

3. On 12‑1‑1974 defendant No. 1 applied under Order IX, Rule 13 read with section 151, C.P.C. for setting aside ex parte decree. It was pleaded that Muhammad Sharif had obtained ex parte decree by misrepresentation, fraud and in collusion with other respondents. It was also pleaded that he had no knowledge about the impugned decree and his attorney learnt on 11‑1‑1974 about the same when the decree‑holder proceeded to influence the local revenue authorities to effect changes in the revenue record. The plaintiff/decree‑holder resisted the application. The learned Senior Civil Judge framed following issues for decision of the application:‑‑

(1) Is there any sufficient reason for setting aside ex parte decree dated 17‑12‑1973?

(2) Has the application be; u filed by an unauthorised person?

(3) Relief.

The evidence of the parties was recorded and the learned trial Court vide order dated 18‑7‑1977 dismissed the application. The respondents challenged the aforesaid order in appeal which came up for hearing before Mian Jehangir Pervez, Additional District Judge, Kasur who vide his order dated 8‑12‑1979 accepted the appeal and set aside ex parte decree dated 17‑12‑1973 on the ground that 10‑11‑1973 was not fixed for hearing of the suit, as such ex parte order could not have been passed against the defendant No. 1. The decree‑holder has assailed the aforesaid order by means of this petition.

4. Learned counsel for the petitioner contended that the plea taken by defendant No. 1 that he had no knowledge about the suit and the proceedings held in pursuance whereof was proved false. The defendant No. 1 had been represented by M/s. Kh. Zia‑ud‑Din and Masood Alt Khan, Advocates on different dates. They failed to appear on 10‑11‑1973. The learned trial Court proceed ex arte against him. It was submitted that subsequent to 10‑11‑1973 the case was faxed for hearing on 26‑11‑1973, 29‑11‑1973, 5‑12‑1973, 7‑12‑1973, 13‑12‑1973, but none appeared on behalf of defendant No. 1 to prosecute the matter. The ex parte decree passed against him was wrongly set aside by the learned appellate Court.

5. Learned counsel for the respondents, on the other hand, contended that Kh. Zia‑ud‑D:n, Advocate was not appointed as counsel on behalf of defendant No. 1. Defendant No. 1 had no knowledge of the suit. The ex parte decree was therefore rightly set aside by the learned Additional District Judge, Kasur.

It was contended that no hard and fast rule could be laid down for setting aside the ex parte decree. The Court is required to take lenient view in the matter. He relied on Muhammad Haleem and others v. H. H. Muhammad Naim and others (P L D 1969 S C 27) and M/s. Landhi Industrial Trading Estates Ltd., Karachi v. Government of Pakistan (1970 S C M R 251) in support of his submission.

6. I have considered the contentions raised by learned counsel for the parties and have perused the record with their assistance. The record reveals that Kh. Zia‑ud‑Din, Advocate had appeared on behalf of defendant No. 1 on more than one dates before the learned trial Court. Similarly Mr. Masood Ali Khan, Advocate had also appeared on one date on behalf of Kh. Zia‑ud‑Din, Advocate representing defendant No. 1. Earlier Kh. Ashfaq Ahmad, Advocate had filed written statement on behalf of defendant No. 1 and others, before the learned trial Court. The power of attorney executed by defendant No. 1 in. favour of Kh. Zia‑ud‑Din Advocate is on the record. The signatures thereon were identified by Kh. Zia‑ud‑Din, Advocate. Mr. Abdur Rahman, Advocate testified that he appeared on behalf of defendant No. 1 seeking transfer of the case. These circumstances borne out from the record clearly show that the defendant No. 1 had knowledge of the suit. He falsely pleaded in the application that he had no knowledge about the pendency of the suit against him.

None appeared on behalf of the defendant No. 1 on 10‑1‑1973. The learned trial Judge acted within his jurisdiction to proceed ex parte against him. Even thereafter several dates were fixed for hearing of the case, before the final decree, was passed on 17‑12‑1973. Nobody appeared on his behalf to defend the case. The authorities cited by learned counsel for the respondents are distinguishable.

7. In Muhammad Haleem's case, plaintiff's counsel, at the relevant time, was appearing before the Sups‑ere Court when the case was dismissed in default. Non‑appearance of the counsel was considered not intentional as he made genuine efforts to be present at the time of hearing. In the instance case a plea which proved false was raised that defendant No. 1 had no knowledge about the suit.

Similarly in M/s. Landhi's case, the ex parte decree was set aside, because on the day the decree was passed, the learned counsel for defendant was not allowed to argue the case in rebuttal. In the instant case however the plea taken by the defendant that he did not engage Kh. Zia‑ud‑Din, Advocate his counsel and that he had no knowledge of the suit had proved wrong, no indulgence could be shown in his favour.

The learned Additional District Judge misdirected himself and committed material irregularity in ignoring this aspect of the case, which otherwise had direct bearing on the decision of the case.

8. For the foregoing reasons the impugned order passed by the learned Additional District Judge is set aside and that of the learned trial Court restored.

This petition is allowed with no order as to costs.

9. This also disposes of C.M. 1139/C of 1980.

3376/L Revision accepted.