BADRLDDIN Versus Mrs. Haji SHAH NAWAZ

1. This order is to be read in continuation of my previous order dated 3‑11‑1987. I have further heard Mr. Nasim Farooqi as well as Mr. Aziz Shaikh. Learned counsel are unable to point out any distinction in the case of Rehman Weaving Factory v. I.D.B.P. P L D 1981 S C 21 so that it may not apply in the circumstances of the present case. In fact the present case is on a stronger footing as on the date when the ex parte order was passed against the petitioner the notice ordered to be issued to the counsel for the petitioner by the trial Court was returned unserved. It is, therefore, quite clear that the order dated 4‑10‑1974 directing the proceeding of the suit ex parte against the petitioners on the face of the record which shows that the notice issued to the counsel for the petitioner for that date was not served was an order wholly without jurisdiction. Accordingly the ex parte decree passed ,on 19‑12‑1974 was equally without any jurisdiction. learned counsel for the respondents very vehemently urged that the issuance of Unnecessary once by the trial Court to the petitioner in the case was absolutely unnecessary as the petitioner had already appeared before the Court in response summons issued in the case. It may be so but when once again the Court had directed issuance of notice to a party it had no jurisdiction to proceed against ' that party without service of such notice oz. hint.. Apart from it in view of the rule laid down in Rehman Weaving Factory v. I.D.B.P, P L D 1981 S C 21, Article 164 was not at all applicable in the case and the application for setting aside the ex parte decree was governed under Article 181 of the Limitation Act which provided a period of three years for filing such application. In these circumstances the view taken by both the Courts for setting aside the ex parte decree as time barred was based on misconceived view of law. I accordingly accept this Revision application, set aside the judgments and decrees of the Courts below and remand the case back to the trial Court for further proceedings in accordance with law. However, keeping in view the fact that the suit was instituted before the trial Court in the year 1971 the petitioner will appear before the trial Court on 6th April, 1988 and on that day the trial Court shall take proceedings from the stage it was declared ex parte and shall dispose of the suit in accordance with law within) six months thereafter. There will be no order as to costs.

2. H.B.T./B‑75/K Revision application accepted.