Mst. NIGAR BIBI and others vs SALAHUDDIN KHAN and others

' ALI HUSSAIN QAZILBASH, J.--This is an appeal by leave against the order of a learned Single Judge of the Lahore High Court, dated 26-9-1987.

2. The facts, briefly stated, are that the appellants instituted a suit for a declaration with relief for perpetual injunction against the respondents in the Court of Senior Civil Judge, Multan. Alongwith the plaint, the appellants also filed an application for grant of temporary injunction against the respondents for restraining them from alienating the suit property. This application was resisted but the relief prayed for was granted on 12-4-1984. This order was assailed by the respondents before the District Judge, Multan, who accepted the appeal of the respondents on 2-1-1985.

3. Feeling aggrieved, the appellants challenged the above order in the High Court where GuI Zarin Kiani, J. Granted temporary injunction on 31-3-1985 as prayed for subject to notice for 4-5-1985.

The respondents did not appear on the said date and they were proceeded against ex parte on 4- 5-1985. The revision was accepted and the order of the District Judge set aside. After about a year the respondents moved the High Court under section 151 C.P.C. With the request to I A recall the order dated 4-5-1985. This application for recalling the earlier order came up before Mr. Justice Munir A.Sheikh who after hearing the parties held that the notice was not served upon the respondents, he, therefore, recalled the order dated 4-5-1985 and fixed the revision for final hearing on 10-10-1987.

4. Leave has been granted to consider the propriety of the impugned order.

5. We have heard the learned counsel for the parties. The learned Judge in his Chambers disposed of the matter with the following observation: "After considering the arguments of both the sides, I am of the considered view that even if no provision of C.P.C. Is specifically made applicable the Court is duty bound to recall an order if it is found that the same was passed on a date when all the parties were not duly served. The rulings cited by the learned counsel for the applicants/respondents of the learned counsel in that behalf and fully support the proposition. Since the there can be no two opinions about applicants/respondents according to record were not served for 4-5-1985, therefore, I am duty bound to recall the order dated 4-5-1985, and restore the Civil Revision to its original number for adjudication on merits after hearing both the parties."

' As the case stands, the learned counsel for the appellants has failed to persuade us to come to a conclusion different from the one arrived at by the learned Single Judge as per the impugned order. We have perused the notices bearing Nos.3991/g and 3989/g dated 15-4-1985 addressed by the Deputy Registrar, High Court, Multan Bench, to the Senior Civil Judge, Dera Ismail Khan and Multan, in Civil Revision No,186 of 1985. These notices nowhere indicate that the hearing of the case was fixed for 4-5-1985 and that the respondents were served for the said date, i.e,, 4-5-1985. The learned counsel for the appellants did not dispute this position at all. So it has become absolutely clear that the respondents were not served for appearance in the High Court on 4-5-1985. The notice in C.M.No,602/C-85 in Civil Revision No,186 of 1985 titled Mst. Nigar Bibi v. Salah-ud-Din Khan was issued by the Deputy Registrar on 14-4-1985 but it conveyed the following order: "DOTH ORDER that you be and are hereby restrained from alienating the suit property,"

' This notice too did not give a slightest indication that the respondents were to be served for 4-5- 1985 for further hearing. Thus since the respondents were not served for appearance in the High Court on 4-5-1985, therefore, they could not be proceeded against ex parte and the order so made by the Court was obviously one without jurisdiction. As the error in passing the ex parte order against the respondents by the learned former Judge was apparent on the face of the record, therefore, in our view, the latter Judge was fully justified in recalling the order dated 4th May, 1985.

5. The contention of the learned counsel for the appellants that under the law the learned Judge in the High Court was not competent to review the order passed by another Judge and that too beyond the period of limitation has no merit. Admittedly the earlier order dated 4-5-1985 passed by the High Court was one which was not only based on ignoring the record and material circumstances but was one without jurisdiction, therefore, another Judge was fully justified to recall and adjudicate upon the matter and pass a correct and just order under the provisions of section 12 (2), C.P.C. Read with section 151 C.P.C. Further, the provision of Order XLVII, rule 5, C.P.C. On the subject is quite clear. Since the learned Judge who passed the order on 4-5-1985 was not on the Bench and there was no likelihood of his presiding over the Bench during the period mentioned therein, the other Judge under the law was, therefore, fully competent to hear and decide the application.

6. As for the question of limitation, this case would not be governed by Article 162 of the Limitation Act. The order against the respondents was passed ex parte, therefore, the application under section 151 C.P.C. Was fully competent for which period of limitation is three years as prescribed by Article 181 of the Limitation Act.

7. Thus in view of the above, wo do not find any merit in this appeal and the same is dismissed, with no order as to costs.