' Shortly narrated the facts are that Civil Suit No,73/1 of 1995 was instituted on behalf of Rehman Construction Company, Peshawar against Government of N.-W.F.P. Through Secretary C&W and others, for recovery of Rs,4,66,304.
2. The respondent-Company is a registered company having its Head Office at Peshawar. The petitioner-Department invited tenders for the construction of Torangzai Bridge, Tangi Road, Charsadda. The tender of the respondent-Company was accepted and work order was issued in pursuance whereof an amount of Rs,1,70,000 was deposited by the respondent-Company with the petitioner-Department as earnest money/security, which was to be released after completion of the project. The work was completed within time but the earnest money was not released which obliged the respondent-Company to file suit against the petitioner-Department.
3. The suit was decreed ex parte on 22-10-1996 by Learned Civil Judge, Peshawar. An application for setting aside the ex parte decree was moved on 25-3-1997. After recording such evidence of the parties, as they wished to adduce, learned trial Judge rejected the application vide his order, dated 24-1-2002. An appeal was preferred thereagainst, which was dismissed by learned Additional District Judge, Peshawar by his order dated 8-3-2004. Feeling aggrieved, orders of the Courts below have been assailed before this Court by way of instant revision petition under section 115, C.P.C.
4. Appearing on behalf of the petitioned-Department, Mr. Muhammad Saeed Khan learned Deputy Advocate-General contended that the petitioner-Department had no knowledge about the institution of the suit by the respondent-Company and the report of the process server procured fraudulently should not have been relied upon and made basis of the impugned order. In this connection he placed reliance on a case reported in PLD 2003 SC 724. Mr. Shakeel Ahmad, Advocate, for the respondent-Company, on the other hand, fully supported the impugned decisions of the Courts below maintaining that the official and representative of the petitioner- Department were fully conversant with the institution of the suit and of ex parte decree but they failed either to appear to defend suit or make application within period of limitation in spite of knowledge. To augment the contentions, reliance was placed on 1995 CLC 516 (Peshawar) and 1985 CLC 231 (Karachi).
5. Arguments of the parties have been heard at length in the light of the material on record.
6. A perusal of the record would reveal that ex parte decree against the petitioner-Department was passed on 22-10-1996. An application for setting aside the ex parte decree was moved on 25-3- 1997. Petitioners were marked absent and proceeded ex parte on 2-4-1996 and 4-1-1996 respectively. The application for setting aside ex parte decree was made after about five months.
No application for condonation of delay was made. If an order is passed ex parte and has the force of a decree, an application to set it aside would be governed by the Article 164 of the Limitation Act.
The summons placed on record dated 19-12-1995 and 17-3-1995 were duly served on the petitioner-Department through Inam Khan, Road Inspector. There is no evidence on the file to prove that whole proceedings of service had been carried out malafidely. Mala fide is one of the most difficult thing to prove and the onus is entirely upon the person alleging mala fide to establish it. Needless to emphasize that defendant would be entitled to demonstrate by leading evidence that he was not served with summons in accordance with law. In the instant case no such evidence is forthcoming. Defendants admittedly having full knowledge of the suit, purposely did not appear in Court to contest such suit. Second proviso to Order IX, rule 13, C.P.C. Requires a Court to dismiss an application for setting aside ex parte decree despite any irregularity in service if the person making application had knowledge of the proceedings. The learned counsel for the petitioner-Department, at the close of his submissions submitted that as the Government interest is involved, a lenient view should be taken. The submission of the learned counsel has failed to impress me. The .Scales of justice must weigh equally, between citizen and citizen or citizen and State and moreso in an Islamic State like Pakistan as held in Joint Secretary, Ministry of Religious and Minority Affairs and 2 others v. Mobina Begum 1985 CLC 231.
Pursuant to above I find that the learned Courts below were quite justified to decline to set aside the ex parte decree dated 22-10-1996. The impugned decisions are well-based and were not amenable to revisional jurisdiction of this Court under section 115, C.P.C. Finding no substance in this revision petition, I dismiss the same with no order as to costs.