MEHR DIN through Legal Heirs vs AZIZAN and another

1. ' WALI MUHAMMAD KHAN, J.---The legal heirs of Mehr Din deceased/plaintiff call in question the judgment dated 7-3-1993 of the Lahore High Court, Rawalpindi Bench, whereby the civil revision filed by the defendants/respondents was accepted and the ex parte decree passed by the learned trial Court was set aside with a direction to proceed with the suit on merits in accordance with law.

2. ' The facts of the case, briefly stated, are that Noor Din father of Mst. Azizan defendant/respondent- 1, husband of Mst. Masoom Bi defendant/respondent-2, and brother of Mehr Din plaintiff/predecessor-ininterest of the petitioners, was owner of land measuring 9 Canals 9 Marlas situated in the estate of Shahpur, District Rawalpindi. Mehr Din plaintiff filed a suit for declaration to the effect that he is the sole heir. Of Noor Din---who died in 1940 when the custom was the rule of inheritance, and that the defendants/respondents are not entitled to inherit him, and additionally, respondent No,2 had been divorced by him during his life time while Mst. Azizan had married prior to the enforcement of Muslim Personal Law (Shariat) Application Act, 1948. The suit was decreed ex parte vide judgment dated 29-7-1967. The respondents filed application under section 12(2) C.P.C.

3. On 12-2-1983 alleging that the decree had been obtained through fraud and misrepresentation by securing bogus report of service on the summons and that the respondents came to know of the ex parte decree when a suit for produce was filed against their tenant. After contest the trial Court dismissed the application and revision filed against it before the District Judge was also dismissed vide order dated 27-5-1:986. The learned High Court vide the impugned judgment accepted the revision petition and hence the instant petition for leave to appeal.

4. ' We have heard Mr. Khalid Iqbal Qazi, Advocate, for the petitioners; Mr. M. Munir Paracha, Advocate for the respondents and have perused the record of the case.

5. ' The learned counsel for the petitioners submitted that at the time of the passing of the decree section 12(2) C.P.C. Was not part of C.P.C. And as such, the respondents could not apply thereunder; that there was no provision of second revision in the Civil Procedure Code and the order of the High Court is thus coram non judice; that the application under section 12(2) C.P.C. Was hopelessly barred by time; that the record of the trial Court regarding service of summons has been misinterpreted and misread; and that the learned High Court could not enter into factual controversy and that too, in second revision.

6. ' The perusal of the application filed by the respondents before the trial Court for setting aside the ex parte decree dated 29-7-1967 would show that the same was filed under Order 9 Rule 13 (wrongly written as rule 2) read with section 12(2) C.P.C. On the grounds that the decree was obtained by fraud, misrepresentation and false statement of which they got the knowledge when the suit for the recovery of produce of the disputed land was filed against Karim Bakhsh who was in cultivating possession thereof as a tenant of the respondent. The sum and substance of the petition is that the decree holder practised fraud in the service of summons and kept the pendency of the suit against the respondents concealed from them by fraud and misrepresentation. The copies of the summons placed on the file reveal that proper procedure was not observed in effecting service upon the respondents who were admittedly Pardanashin ladies and special care had to be taken to inform them of the filing of the suit. The report on the first summons show that the respondents informed the process-server that in the absence of their attorney they cannot sign or thumb-impress the summons while at the time of visit of the process server for the second time for effecting service, the respondents were not present in their house. No effort was made to personally serve the respondents in the presence of their close relatives. The learned High Court has exhaustively incorporated the relevant provisions of C.P.C. Pertaining to service on the parties which have not been complied with and the High Court justifiably felt inclined to annul the ex parte decree against the ladies/respondents and ordering de novo trial.

7. ' We do not find any legal flaw in the impugned judgment and accordingly refuse leave to appeal.

8. The petition is accordingly dismissed.