Saeed Ahmed Versus Abdl Rasheed
Gul Hassan Tareen, J .--- This is a civil revision petition under section 115, the Code of Civil Procedure, 1908 ( the Code ) against judgment and decree dated 18 August 2022 of the learned Members, Majlis-e-Shoora, Kalat ( Appellate Court ) allowing respondents 1 to 9 s appeal from the judgment and decree of the learned Qazi Kalat ( Trial Court/Trial Judge ) and remanding the case to the Trial Court with directions to provide an opportunity to the respondent 11 to present a written statement and permit the parties to present additional evidence if it deems it necessary and then decide the suit in accordance with the provision of Order XX, rule 5, the Code.
2. Petitioners had instituted a civil suit against the respondents that they are owners and in possession of the land described in paragraph 1 of the plaint. They pleaded that they started construction of a filling station on the land when the respondents 1 to 9 and 11 started interference and did not allow them to enjoy possession of their own land.
In prayer clause, petitioners sought declaration of ownership and perpetual injunction.
3. Respondents 1 to 9 ( respondents ) presented a written statement. Trial Court framed issues and, when the evidence was completed, the suit was decreed, however, the Appellate Court setaside judgment of the Trial Court and remanded the case in the terms above.
4. In the impugned judgment, the Appellate Court has observed that though, summons was served on the respondent 11, however, he did not turn up before the Trial Court yet he was not proceeded ex-parte under Order IX rule 6, the Code through a formal order in writing which was an illegality and, therefore, case is remanded to the Trial Court to provide him an opportunity to present a written statement.
5. Petitioners learned counsel Mr. Mohsin Baloch stated that despite service, the respondent 11 did not appear before the Trial Court, thus, the decree in favour of the petitioners could not be reversed merely on the ground that he was not formally proceeded ex-parte which was an irregularity and not an illegality. In conclusion, the learned counsel stated that the act of court should not prejudice any party. He placed reliance on the case law reported as Mirbad Khan (Late) v. Muhammad Umer (2021 CLC 1530).
5.(sic) Respondents learned counsel Mr. Naseer Ahmed Bangulzai stated that the impugned judgment of the Appellate Court is well reasoned and reflects the true and correct interpretation of the law, thus, suffers from no illegality.
7. Learned Addl. A.G supported the impugned decree.
8. Heard and have gone through the record and the case law cited by the petitioners learned counsel.
9. The following point to be determined is for consideration: can a decree be reversed that a non-appealing defendant was not formally proceeded against ex-parte?
10. The respondent 11 was arrayed as defendant 10 in the plaint. He was served with a summons, however, despite service, he did not enter appearance before the Trial Court. The Trial Court should have documented the fact of service and then, proceeded exparte against him through an order in writing. In this case, the learned Trial Judge appears to have overlooked this fact and did not issue a formal order to proceed ex-parte against the respondent 11.
11. Though, the learned Trial Judge did not issue a formal ex-parte order against the respondent 11, still, when the suit was decreed against him, he did not assail the decree in appeal. In the appeal, the respondents 1 to 9 had arrayed him as appellant No.10 in the appeal, however, on the direction of the Appellate Court, he was transposed to the position of respondent 6 in the title of appeal. Despite service, he did not appear before the Appellate Court, thus, he was proceeded ex-parte. Even though service was properly effected, the said respondent did not appear before this Court, as such, the Court proceeded against him ex-parte by order dated 17 August 2023.
The Trial Court had not proceeded against the respondent 11 ex-parte through a documented order, however, since he did not file an appeal against the decree; thus, in view of the afore discussed facts, that omission of the Trial Court was a mere procedural irregularity, and not an illegality vitiating the whole trial. Respondent 11 despite service did not enter an appearance in the Trial Court or the Appellate Court for, he did not intend to contest the suit or contest/support the respondents appeal. Though, the Trial Court should have formally and through a written order, proceeded against him the ex-parte order under Order IX rule 6, the Code, since section 142, the Code provides that all orders and notices served on or given to any person under the provision of this Code shall be in writing , still, the said omission was a mere procedural irregularity not affecting the merits of the case under section 99, the Code. Section 99 reads as: -
No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.
12. The Appellate Court seems to have overlooked afore discussed facts and section 99, the Code and thus, committed error of the law of section 99. An Appellate Court cannot suo motu take notice of mere irregularity in procedure, unless objected to by the aggrieved party or same resulted into miscarriage of justice. Respondent 11 did not raise objection by filing appeal that he had not been formally proceeded against ex-parte. Thus, in this case, the Appellate Court did not have the authority to set-aside the decree of the Trial Court on its own initiative. In Shamsur Rehman v. Chaman Dasta s case reported in 2004 SCMR 1798, the Apex Court ruled as: -
5. This Court in case of Sir Zafrullah Khan PLD 1964 SC 865(e) has further held that a procedural defect is closely linked to the prejudice caused thereby and the party so prejudiced must itself raise such objection. In case a party does not raise any objection, the Court should not do it suo motu, for, it stands waived by the party concerned. This even otherwise is the basic impression of section 99 of the C.P.C. pertaining to appeals, laying down that no decree is to be reversed or modified for error or irregularity not affecting merits or jurisdiction.
6. We have already held that in the instant case the question of jurisdiction, as such, is not and cannot be disputed and hence mere irregularity in procedure, unless objected to by the party aggrieved, should not be taken such a serious notice of by even an Appellate Court, much less a revisional Court, as done in the instant case. It may be recalled that this objection qua procedure was never raised by any of the parties either before the trial Court or before the First Appellate Court or before the High Court and hence should not have been suo motu taken up by the High Court.
Consequently, the point for determination is answered in the negative.
13. Evidence upon the record was sufficient to enable the Appellate Court to pronounce the judgment. The Appellate Court, after resettling the issues (if deemed necessary) could have proceeded to decide the appeal under Order XLI rule 24, the Code, instead of remanding the case to the Trial Court. Rule 24 of the Order XLI, the Code is an exception of the rules 23 and 25 of Order XLI, however, the Appellate Court overlooked it and, therefore, the impugned judgment suffers from the error of the law of Order XLI rule 24, the Code.
14. For the aforesaid reasons, the Appellate Court had failed to exercise a jurisdiction vested on it under section 99 and Order XLI rule 24, the Code, thus these jurisdictional errors attract section 115 subsection (1) clause (b) of the Code.
Consequently, I allow this petition; set-aside impugned judgment and decree of the Appellate Court dated 18 August 2022 and, remand back the case to the Appellate Court to decide the appeal on the basis of available record after hearing the parties in accordance with the law. Parties are directed to appear before the Appellate Court on 28 November 2025. No costs.
MQ/151/Bal. Revision allowed.