MUHAMMAD MAHMOOD Versus GHULAM RASOOL

The petitioner sued the respondents' predecessor‑in‑interest namely, Nazir Hussain, for specific performance of an agreement dated 3‑12‑1980. The latter was proceeded against ex parte. He made an application for setting aside the ex parte proceedings on which issues were struck. When this application was at the evidence stage, Nazir Hussain died. He was substituted icy the respondents under the trial Court's order dated 12‑10‑1982. After the respondents were impleaded as party they filed written statement on 12‑10‑1982. The petitioner raised objection that without first getting the ex parte proceedings set aside the respondents had no right to tender the written statement. The learned trial Court by its order dated 8 ‑5‑1983 turned down the petitioner s objection and took the view that the respondents could join the proceedings at any stage and that in the interest of justice effective participation entailed the filing of the written statement. The validity of the trial Court's order dated 8‑5‑1983 has been called in question through this revision.

2. I have heard the learned counsel for the parties and examined the available record. The learned counsel for the petitioner has reiterated the arguments advanced by him before the learned trial Court id it is contended that the learned Court below fell in error in .' ' _ s pondent's written statement without first setting aside the ex parte proceedings conducted against their predecessor‑in‑interest.

3. There is some force in this submission. No doubt the respondents had the right to join the suit, at any stage but that docs not mean that the proceedings already taken against the deceased would he set at naught. The correct position m law is that they could take part in the proceedings at the stage, where the suit was at the time of the death of predecessor-in-interest. It being so, the learned counsel for the respondents did not have much in contesting the point in issue. He, however, submitted that the case is still at the initial stage; the setting aside of the ex parte proceedings and then entertaining the written statement would merely be a technicality. The proposition that in the instant case upon the provisions of Order XXII Rule 4, C.P.C. the written statement could not have been entertained without first setting aside the ex parte proceedings, however, could not be refuted. There is thus no way but to accept this revision petition and set aside the impugned order. I order accordingly.

4. The case is sent back to the learned trial Court. The application for setting aside the ex parte proceedings shall be treated a s pending and disposed of first. The suit shall be dealt with on merits in accordance with law alter the disposal of the said application.

The parties are left to bear their own costs and directed to appear before the learned trial Court on 29‑11‑1983.

M.Y.H./3028/L ??????????

Revision accepted.