GOVERNMENT OF N.-W.F.P. Versus WAHAB GUL

ORDER

MUHAMMAD BASHIR KHAN JEHANGIRI, J.‑‑‑ This petition for special leave to appeal is directed against the decision of a learned Single Judge of the Peshawar High Court, Peshawar, made in revisional jurisdiction under section 115 of the Code of Civil Procedure, 1908, refusing to interfere with the order of the learned Additional District Judge, Kohat Camp Hangu, dated 11‑5‑1993 whereby he upheld the judgment and ex parte decree in favour of Wahab Gul and others, respondents, against the Government of N.‑W.F.P and others, petitioners. The ex parte decree aforesaid was obtained by the respondents in a suit Which they had filed against the Government of N.‑W.F.P and three others for a declaration that they were the occupancy tenants in possession of the disputed premises and that the petitioners had illegally altered the earlier entries and described the respondents as tenants‑at‑will in the subsequent Jamabandis. They also claimed declaration to their entitlement to receive compensation for a portion of the suit land on which the respondents had constructed the building of Vocational Institute without the consent of the respondents". In the alternative, the respondents had prayed for possession of the premises by demolition of the construction.

2. The impugned order of the High Court reveals that defendants Nos.1 and 3 were represented through A.D.K. on 4‑12‑1986 whereas defendants Nos.2 and 4 having absented themselves were served through fresh notices for 31‑1‑1987. Having failed to put up the attendance, they were ordered to be served through the Court notice published in Daily Mashriq, Peshawar. As they did not enter appearance in the Court despite publication of the said notice, they were proceeded against ex parte on 19‑2‑1987. The Provincial Government through Collector had filed written statement on 26‑2‑1987 through A.D.K: giving rise to some issues. The case was posted to 12‑3‑1987 for filing the list of witnesses but as the A.D.K. was again absent the case was posted to 2‑4‑1987 on which date no one appeared on behalf of the petitioner‑Government, therefore, the learned trial Court decreed the suit ex parte against all the defendants. On 23‑11‑1989 an application on behalf of the petitioner‑Provincial Government was moved through A.D.K. for setting aside the ex parte decree. Notices were accordingly issued to the respondents for 9‑12‑1989. The parties entered appearance, therefore, proceedings were adjourned to 25‑1‑1990 for filing the replication on which date the reply was filed. The case was then fixed for 22‑2‑1990 for arguments. On this. adjourned hearing again there was none to represent the petitioner‑Government in the Court, therefore, the application for setting aside the ex parte decree was dismissed in default. On 12‑12‑1991 another application was moved for setting aside the ex pane decree. After two adjournments the learned trial Judge dismissed the application on the grounds. firstly, that the application for setting aside the ex parte decree was not maintainable, in that, the petitioner‑Government ought to have, as a first step, moved for restoration of their earlier application rather than to have the ex parte decree set aside and secondly, that the application was "miserably time‑barred". The petitioner‑Government then went in appeal and a learned Additional District Judge, Kohat, Camp Hangu, vide his order dated 11‑5‑1993 concurred in both the grounds that found favour with the learned trial Judge in sustaining the ex parte decree passed against the petitioner‑Government. The order of the learned Additional District Judge was assailed, inter alia, on the ground that the learned trial Judge had passed the ex parte decree without any evidence being recorded and, therefore, the impugned judgment and decree was of no value in law. Similarly, Ground No.7 in the revision petition filed by the petitioners in the High Court was also to the same effect. The learned Judge in Chamber of the High Court as well as the learned Appellate Court had, however, not adverted to this substantial question of law in both the impugned orders.

3. Mr. Fateh Muhammad Khan, learned counsel appearing on behalf of the petitioners, contended that the provisions of rule 26‑A of Order V, C.P.C. prescribing the mode of service upon the Government officials in connection with the suits ,against the Government were not at all adhered to by the learned trial Judge, therefore, there was no legal justification for ex parte proceedings against the, petitioners. We have not been impressed by this contention of the learned counsel. The A.D.K. did enter appearance on behalf of the Provincial Government, therefore, any violation of rule 26‑A supra would not be of any consequence.

4. The learned counsel for the petitioners next contended that even if it is conceded at the petitioners had been rightly proceeded against ex parte the learned tri Judge had erred to decree the suit of the respondents without recording by evidence particularly when substantial rights in the landed as well as constructed property of the petitioners‑Government were involved. In this context, re iance was placed on Shamroz Khan and another v. Muhammad Amin and other (PLD 1978 SC 89) wherein it was held that in exercise of its discretion, whether it should decree the claim against the defendants after recording evidence or without recording evidence by the Trial Court and that like all discretions vested in the Court, this discretion ought to have been exercised judiciously which has not been so exercised by the learned Trial Court.

5. Leave to appeal is, therefore, granted to consider the aforenoted contention raised on behalf of the petitioners.

CMA. No. ‑P/1995.

The operation of the judgments and the decrees is suspended. Status quo in the meantime.

A.A./G‑539/S Leave granted.