' Bakht Sheray and another respondents Nos.1 and 2 filed suit against Bahader and 9 others in the Court of learned Senior Civil Judge/Aala Illaqa Qazi, Swat seeking declaration etc. The said suit was resisted by the defendants by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties decreed the suit ex parte in favour of the plaintiffs vide judgment and decree dated 19-2-2000. Feeling aggrieved with the said judgment and decree Taj Muhammad Khan and another filed Appeal No,81/13 of 2001 in the Court of learned Additional District Judge/Izafi Zilla Qazi, Swat, which was dismissed vide judgment and decree dated 20-3- 2001. Being aggrieved with the judgments and decrees the petitioners have now filed the revision petition in hand.
2. Syed Sardar Hussain the learned counsel for the petitioners argued that application for setting aside the ex parte decree was dismissed on 28-1-2000 by the learned trial Court. Before that the case was fixed for 12-1-2000 on which the date was adjourned on the note of the Reader, therefore, it was incumbent upon the learned trial Court, to have issued notice to the petitioners, but the same was not done. Application for restoration of the application for setting aside the ex parte decree was submitted on 8-3-2000 but the same was dismissed vide order dated 20-7-2000.
Appeal against the same was also dismissed vide judgment and order dated 20-3-2001. The Courts below failed to appreciate the law applicable to the case in hand.
3. On the other hand Mr. Said Tahar Khan, the learned counsel representing the respondents argued that the appeal filed by the petitioners was barred by time and the learned Courts below had passed the judgments and decrees in accordance with law, which need no interference.
4. I have heard the learned counsel for the parties and perused the record.
5. Suit in hand was filed on 26-5-1999. The defendants attended the Court on 6-3-1999. They were absent on 17-7.1999, hence were proceeded against ex parte. On the same day they submitted application for setting aside ex parte proceedings, but their application was dismissed for non- prosecution, vide order dated 28-1-2000. Ex pane decree was passed against them vide judgment and decree dated 19-2-2000. Having come to know about the ex parte decree, they submitted application for restoration of their earlier application and for setting aside the ex parte decree, which was dismissed vide order dated 20-7-2000. Petitioners filed appeal of 94-2000 which too was dismissed vide judgment and decree dated 20-3-2001.
6. The perusal of the record shows that the case was fixed for 12-1-2000 on which date the learned Presiding Officer was on leave, hence the case was adjourned on the note of the Reader for 28-1- 2000 on which date the learned trial Court dismissed the application for setting aside ex parte proceedings which had been filed on 17-7-1999 on which date the ex parte proceedings had been initiated. (sic) and not by the Court itself, therefore, the said date could not be called a "date of hearing" as held in Nowsheri Khan v. Said Ahmad Shah 1983 SCM R 1092, The proper course for the learned trial Court was to adjourn the date and then the Court should have proceeded further. The dismissal of application for setting aside the ex parte proceedings on 28-1-2000 was, therefore, not in accordance with law. The Courts below have failed to appreciate the law applicable to the case in hand.
7. The learned Appellate Court had dismissed the appeal filed by the petitioners being barred by time. The learned Appellate Court has also not appreciated the proper law because the impugned judgment/order had been passed on 20-7-2000, whereby application for restoration of the earlier application dated 17-7-1999 and for setting aside the ex parte decree dated 19-2-2000 was dismissed. Against the judgment/order dated 20-7.2000 the appeal was filed on 8-9-2000, which was quite in time. The learned Appellate Court has erred in dismissing the appeal being barred by time. I, therefore, allow the revision petition in hand, set aside the (sic). I also accept the application dated 17-7-1999 for setting aside the ex parte proceedings and set aside the ex parte proceedings.
There shall, however, be no orders as to costs. The learned trial Court is directed to decide the suit on merits in accordance with law within a period of four months. The office is also directed to send the record of the case to the Court concerned immediately.