Mst. ANDLEEB SABIR NAQVI Versus Syed SAFEER HUSSAIN SHAH

RAZA ALI KHAN, J.--- Impugned herein, is the judgment dated 04.04.2023, rendered by the High Court, whereby, the revision petition filed by the appellants, herein, has been dismissed.

2.The facts giving rise to the instant appeal are that the Syed Safeer Hussain Shah/ plaintiff/ respondent, herein, filed a suit for declaration along with possession and perpetual injunction against Mst. Khaknisa and others in the Court of the Civil Judge Muzaffarabad/ Trial Court. It was stated that the land bearing Khewat No. 261 Min, Khata No. 390 Min, Survey No. 1757/32 Min, measuring 1 kanal , 10 marlas , along with eight shops, three houses and a plaza known as ' Alqaim Plaza ', constructed over the suit land, was owned by Syed Muhammad Shah, the father of the plaintiff. It was further stated that after the death of Syed Muhammad Shah, the land measuring 6 marla along with two shops, a house and a part of the plaza inherited by the plaintiff. The trial Court, after conducting necessary proceedings, decreed the suit in favor of the plaintiff through an ex-parte judgment and decree dated 31.12.2014. Subsequently, on 15.12.2018, the appellants filed an application under Order IX, Rule 13 of the Code of Civil Procedure (C.P.C.), for setting aside the ex-parte judgment and decree dated 31.12.2014, before the Trial Court, which was dismissed through the judgment dated 29.12.2018. Feeling aggrieved from the said judgment, the appellants preferred an appeal before the District Judge Muzaffarabad, which was also dismissed through a judgment dated 27.09.2021. The revision petition before the High Court was also dismissed through the impugned judgment dated 04.04.2023.

3.Mr. Muhammad Yaqoob Khan Mughal and Syed Zulqarnain Raza Naqvi, learned counsel for the appellants, after narrating the necessary facts, submitted that the impugned judgments of the Courts below contravene the law, rules and facts of the case. They contended that the Trial Court and the First Appellate Court failed to follow legal norms and procedural due process. Additionally, the High Court erroneously upheld their decisions as concurrent findings, despite clear instances of misreading and non-reading of oral and documentary evidence. They further contended that the summons were not properly served upon the appellants, despite this the trial Court proceeded to pass an ex-parte judgment and decree dated 31.12.2014, which is unjust and unfair. They further contended that the suit filed by the respondent before the Trial Court was not maintainable because the value of the disputed property was in millions; it should have been filed before the District Judge, however this important aspect was overlooked by the Courts below. They asserted that the High Court failed to address the appellants' legal and factual arguments raised in the revision petition and written submissions. They further claimed that the respondent himself admitted to being a co-sharer in undivided property, making his suit legally unsustainable before the Trial Court under the Court Fee and Suit Valuation Act. In support of their arguments, the learned Advocates placed reliance on the judgment of this Court reported as [1999 CLC 1406].

4.On the other hand, Syed Shujaat Ali Gillani, the learned counsel for the respondents, vehemently opposed the contentions raised by the appellants' counsel and submitted that the impugned judgments of the Courts below are well-reasoned, legally sound, and based on a proper appreciation of evidence. He argued that the summonses were duly served upon the appellants in accordance with the prescribed legal procedure, and their failure to appear before the Trial Court resulted in the passing of ex-parte judgment and decree dated 31.12.2014. He submitted that the suit was competently filed before the Civil Judge Muzaffarabad, as the valuation of the suit property was determined based on the relief claimed by the respondent. The appellants' objection regarding jurisdiction is misconceived, as the jurisdictional valuation is governed by the pleadings of the plaintiff rather than the appellants' unilateral assessment of the property's market value. The Trial Court had the jurisdiction to entertain the matter, and both the First Appellate Court and the High Court rightly upheld this position. Additionally, he contended that the Trial Court and the Appellate Courts meticulously examined the evidence on record and ruled in favour of the respondent. The concurrent findings of fact by the lower Courts cannot be disturbed merely because the appellants seek a different conclusion. He further submitted that the respondent is the legitimate son of Syed Muhammad Shah, who divorced the respondent's mother before remarrying and having children from the second marriage. Upon Syed Muhammad Shah's death in 1994, his estate was lawfully transferred to his legal heirs, including the respondent. He further submitted that Appellant No.1's mother (the second wife of Syed Muhammad Shah) filed a false suit (Suit No. 15) on 13.01.1996 before the sub-Judge Muzaffarabad, challenging the respondent's status as a legal heir. The respondent subsequently filed a counter-suit (Suit No.491) on 05.12.1996, and both cases were consolidated with a status quo order was issued on 17.12.1997. Despite this, the appellants executed a gift deed in favour of Appellant No. 1 in violation of the court order. Thereafter, Appellant No.1's mother deliberately remained absent from the Court, leading to the dismissal of her suit for non-prosecution on 11.12.2010. He submitted that the respondent later filed an amended suit, but the appellants, despite being fully aware of the proceedings, deliberately chose to remain absent. Consequently, an ex-parte judgment and decree were issued on 31.12.2014, confirming the respondent's ownership. He further submitted that the appellants had actively participated in the proceedings of earlier suits, making their claim that they were unaware of the proceedings before the Trial Court in the judgment and decree dated 31.12.2014 false and baseless. In support of his arguments, the learned Advocate placed reliance on the judgments of this Court reported as [2018 SCR 107] , [2021 SCR 370] and [2021 SCR 387] .

5.We have heard the learned counsel for both the parties and examined the record along with the impugned judgments. A perusal of the record reveals that the respondent filed a suit for declaration along with possession and perpetual injunction against Mst. Khaknisa and others in the Court of Civil Judge Muzaffarabad and prayed for a decree to the extent of his share. The Trial Court, after conducting necessary proceedings, decreed the suit in favour of the plaintiff through an ex-parte judgment and decree dated 31.12.2014. Feeling aggrieved, the appellants filed an application under Order IX, Rule 13, C.P.C., before the Trial Court to set-aside the ex-parte judgment and decree dated 31.12.2014, which was dismissed. The appeal before the District Judge Muzaffarabad and revision petition before the High Court also failed.

6.The crucial point in the present case is whether the Trial Court rightly dismissed the application filed by the appellants under Order IX, Rule 13, C.P.C. A thorough perusal of the record reveals that the Trial Court rendered an ex-parte judgment and decree on 31.12.2014. However, the application for setting aside the said ex-parte decree was filed by the appellants on 15.12.2018, which is after a considerable lapse of nearly four years. The appellants have claimed that the summons were not duly served upon them, and consequently, they remained unaware of the judicial proceedings. An examination of the record shows that two separate suits were instituted before the Trial Court. One suit was filed by Khaknisa and others against the respondent, whereas the respondent also filed a cross-suit against Khaknisa and others. The appellants were parties in both the suits. In the suit filed by the respondent, the appellants were included as defendants Nos. 2 and 4. The record further discloses that in this suit, defendants Nos. 1 to 6 had filed a written statement through an Advocate, which establishes unequivocally that the appellants had knowledge of the suit instituted by the respondent. Moreover, considering that Khaknisa, against whom the respondent had filed a suit before the Trial Court was the mother of Appellant No. 1, and Appellant No. 2 is the husband of Appellant No. 1. It is highly improbable to assert that the appellants were unaware of the proceedings before the Trial Court. Even if, for the sake of the argument, it is assumed that the summons were not duly served upon the appellants, even then their application under Order IX, Rule 13, C.P.C., was liable to be dismissed. This provision explicitly stipulates that when a defendant appears in Court either personally or through an authorized agent or an Advocate, there exists no necessity for the formal service of summons upon such defendant. For clarity and reference, Order IX, Rule 13, C.P.C., is reproduced below:

1 [Provided further that no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied, for reason to be recorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim.]

2 [(2) The provisions of section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to applications under sub-rule (1).]"

From the record, it is evident that the decree against which the appellants sought relief under Order IX, Rule 13, C.P.C., pertained to a suit in which they had already appeared through an Advocate and filed a written statement but subsequently chose to remain absent. This fact demonstrates that the appellants were aware of the pendency of the suit. As per the legal principles encapsulated in the aforementioned rule, if the Court is satisfied that the defendant was aware of the suit and had ample opportunity to appear and respond to the claim, the ex-parte decree cannot be annulled merely on the pretext of an irregularity in the service of summons. The record irrefutably establishes that the appellants were fully cognizant of the suit instituted by the respondent before the Trial Court. Therefore, the rejection of their application under Order IX, Rule 13, C.P.C., by the Trial Court was justified and legally sound.

7.With regard to the contention raised by the learned counsel for the appellants that the suit filed by the respondent before the Civil Judge, Muzaffarabad was not maintainable, as the disputed property's value was in millions and that it should have been filed before the District Judge, it is pertinent to observe that the Trial Court rendered its ex-parte judgment and decree on 31.12.2014, which had attained finality. The appellants filed their application under Order IX, Rule 13, C.P.C., before the Trial Court after a considerable delay of almost four years. Additionally, at no stage during the proceedings before the Trial Court and the District Court they raised this jurisdictional objection. It is an established principle of law that an objection not raised before the lower courts cannot be allowed to be raised for the first time before this Court, particularly when the judgment and decree have already attained finality. Hence, the argument advanced by the learned counsel for the appellants lacks merit and is hereby repelled.

8.Moreover, the findings of the Trial Court have been affirmed by the District Judge, Muzaffarabad, and the High Court. It is a well-entrenched principle of law that concurrent findings of facts recorded by the courts below are not to be disturbed unless there exists a manifest misreading or non-reading of the evidence on record. The learned counsel for the appellants has been unable to substantiate any such legal or factual infirmity that would justify interference by this Court.

For the reasons recorded hereinabove, this appeal stands dismissed with no order as to costs.

MQ/29/SC(AJ&K) Appeal dismissed.