ALLAH DITTA Versus MUHAMMAD ANWAR
This matter concerns a petition for special leave to appeal against a judgment of the Lahore High Court, which upheld concurrent findings of the trial court and the Additional District Judge regarding the validity of an ex parte decree. The original suit involved a claim of ownership over agricultural land, where the trial court issued an ex parte decree after the defendants avoided service and failed to appear following substituted service via proclamation. The petitioner subsequently filed a separate civil suit challenging the ex parte decree, alleging it was obtained through fraud and collusion between the plaintiff and the process-serving agency. Both the trial court and the appellate court found that the petitioner failed to prove the allegations of fraud. The High Court declined to interfere with these concurrent findings of fact. The Supreme Court held that since the lower courts had thoroughly examined the evidence and reached a factual conclusion that fraud was not established, and as the petitioner failed to demonstrate any legal infirmity in those findings, there were no grounds to interfere. Leave to appeal was refused.
- Can a court interfere with concurrent findings of fact regarding allegations of fraud in a second appeal?
- Is an ex parte decree valid if it was obtained after substituted service was properly executed via proclamation?
ORDER
SAAD SAOOD JAN, J.‑‑ This petition for special leave to appeal arises from the judgment, dated 25‑5‑1980 of the Lahore High Court whereby it upheld the judgment of the Additional District Judge, Jhelum, affirming the judgment and decree of the trial Court.
2. On 7‑7‑1976, Mian Abdullah, predecessor‑in‑interest of respondents Nos. 1 to 10, filed a suit for a declaration to the effect that he together with respondents Nos. 11 to‑ 14 was the owner in possession of a piece of agricultural land and that the entries in the revenue record showing the petitioner to be in adverse possession thereof were incorrect and not supported by the actual position at the spot. The trial Court issued summonses to the petitioner and the other defendants for 24‑7‑1976. These were returned back with the report that the petitioners and the other defendants were intentionally avoiding to receive them. On 24‑7‑1976, the trial Court adjourned the proceedings to 30‑7‑1976 with the direction that substituted service be resorted to by way of proclamation in the village. Despite the substituted service which was made through the beat of drum in the village, the petitioners and the other defendants did not appear in the Court. Consequently, on 30‑7‑1976, the trial Court eased an ex parte decree in favour of Mian Abduilah.
3. On 27‑10‑1977, the petitioner filed a civil suit for a declaration inter alia to the effect that the ex parte decree obtained by Mian Abdullah was illegal and inoperative in so far as his rights were concerned as the same had been obtained through fraud and forgery. This application was resisted by respondents Nos. 1 to 10. In accordance with the averments of the parties the learned trial Court framed an issue to the effect whether the ex parte decree was illegal, forged and base‑d on fraud. After considering the evidence led by the parties, the learned trial Court came to the conclusion that the fraud as alleged by the petitioner had not been established; accordingly, it dismissed the suit. The petitioner filed an appeal before the Additional District Judge who after re‑examining the evidence upheld the finding of the learned trial Court; consequently, he dismissed the appeal. The petitioner then filed a second appeal in the High Court but without any success. He now seeks leave to appeal from this Court.
4. It is to be noticed that the plea of fraud taken by the petitioner was founded on the allegation of collusion between Mian Abdullah and the process serving agency. Both the trial Court and the learned Additional District Judge examined the evidence led by the parties at length and came to the conclusion that the fraud had not been proved. This was a finding of fact and the High Court did not interfere with, it. Learned counsel for the petitioner has not been able to persuade us that it suffers from any infirmity. Leave to appeal is refused.
S.Q./A‑209/S Leave refused.