NAWAB DIN (DECEASED) thr. L.R. vs Ch. MUHAMMAD ALI and others
This petition arises from a judgment of the Lahore High Court dismissing a revision petition against the concurrent findings of the lower courts, which had refused to set aside an ex-parte decree passed against the deceased petitioner on 6.6.1979 for recovery of possession of the disputed property. The core legal question was whether the petitioner was duly served with the summons in the original suit. The Supreme Court held that the concurrent findings of fact regarding due service through the petitioner's sons, who habitually received his mail, were based on a proper appraisal of evidence and did not suffer from any misreading or non-reading. The Court affirmed that the petitioner was legally served and that the ex-parte decree was not open to any legal exception. The key principle laid down is that where service is duly established through ordinary course and receipt by family members in shared premises, an application to set aside an ex-parte decree without satisfactory explanation for non-appearance or knowledge thereof is untenable.
- Whether an ex-parte decree can be set aside when the petitioner was duly served through family members in the ordinary course?
- Does the concurrent finding of lower courts regarding service of summons warrant interference under revisional or appellate jurisdiction without proof of misreading of evidence?
- Is an application to set aside an ex-parte decree maintainable without satisfactory evidence explaining the non-appearance?
- Order IX Rule 13, Code of Civil Procedure 1908
- Section 151, Code of Civil Procedure 1908
MUNIR A. SHEIKH, J.-- This petition is directed against the judgment dated 1.7.1998 of the Lahore High Court, Lahore, through which revision petition filed by the petitioner has been dismissed.
2. A decree for recovery of possession of the property in dispute was passed in the suit filed by the respondents against the petitioner on 6.6..1979. It was ex-parte decree. The petitioner, inspite of service of summons did not appear and contest the suit. On 12.9.1979, Nawab Din, deceased- petitioner made an application under Order IX, Rule 13 read with Section 151, CPC for setting aside the said ex-parte decree which was contested by the respondents decree holders in which issues were framed and evidence led by the parties.
3. The trial Court after going through the evidence, came to the conclusion that the notices/summons were duly served on deceased Nawab Din, therefore, ex parte order passed against him did not suffer from any illegality on that account. The application was dismissed through order dated 24.1.1984. Appeal filed by the Petitioner was dismissed through order dated 14.10.1983 by the learned Additional District Judge, against which revision petition filed by him has also been dismissed through the impugned judgment dated 1.7.1998 by the learned Judge in chamber of the Lahore High Court, Lahore.
4. In order to prove that the petitioner was duly served in accordance with law, the respondents examined Process Server who served the summons of the Court on one of the sons of the petitioner namely Muhammad Hafeez. The notices were also issued through registered post and post Man also appeared and stated that he served the notices on Muhammad Amin, the other son of the petitioner. Nawab Din, deceased-petitioner when appeared as his on witness, admitted that his address given in the title of the plaint was correct. It was also admitted by him that he was running a factory in partnership with his sons, Muhammad Hafeez and Muhammad Amin and in the ordinary course, his Dak used to be received by his two sons.
5. The petitioner did not produce any satisfactory evidence as to why he did not appear and also nothing was stated in the application as to in what manner and through whom he came to know about the ex-parte decree. The respondents claimed ownership of the property on the basis of transfer of the same by the Settlement Department but on the other hand nothing has been stated in the application for setting aside the ex-parte decree as to under what title or rights the petitioner was in possession of the property, therefore, it can safely be presumed that the petitioner had not claimed title in the property but merely possession thereof.
6. The orders passed by the Courts below are based on elaborate, correct and careful appraisal of evidence which have not been shown to have suffered from any misreading, misconstruction or non-reading thereof.
7. Nawab Din, deceased-petitioner was rightly held to have legally and duly served in the suit, therefore, ex-parte decree passed against him was not open to any legal exception.
8. For the foregoing reasons, this petition has no merit, which is accordingly, dismissed and leave refused.