This revision petition is directed against the judgment. and decree dated 15.11.2003 passed by the learned District Judge/Zilla Qazi, Malakand at Batkhela vide which he dismissed the appeal of the petitioner against the judgment and order dated 28.1.2003 of the learned Senior Civil Judge/Aala Illaqa Qazi, Malakand at Batkhela whereby the application dated 3.11.2000 of the petitioner for setting aside the ex-parte decree dated 4.6.1997 was dismissed.
2. The brief facts of the case are that Muhammad Jamil, Plaintiff-Respondent No, 1 had instituted a suit against Muhammad Khan, defendant/petitioner and Defendants-Petitioners Nos, 2 to 7. During the pendancy of the suit the defendants were placed ex-parte and ultimately, exparte decree was passed in favour of the plaintiff Respondent No, 1 by the trial Court on 4.6.1997. After coming to know about the ex-parte decree the petitioner submitted an application dated 3.11.2000 before the trial Court for setting aside the ex-parte decree dated 4.6.1997 which was dismissed vide judgment/order dated 28.1.2003. The petitioner went in appeal before the " Appellate Court where too was dismissed by the learned District Judge/Zilla Qazi, Malakand at Batkhela through his judgment and decree dated 15.11.2003. Hence the instant revision petition.
3. The learned counsel for the petitioner argued that the very plaint in the suit if perused, it would indicate that address of the petitioner was given that of Karachi which too is very vague. In fact the petitioner was out of country to proceed to Middle East through Baluchistan by illegal manner as such he has no documents to produce before the Court in support of his contention so as to show that he proceeded to foreign country. The learned District Judge/Zilla Qazi had opined in his impugned judgment that although the petitioner had not been served personally but his son used to appear and asking for time and taking into account the appearance of his son he termed that the petitioner had the knowledge of the suit in question, therefore, his application for setting aside the ex-parte decree was disallowed. He submitted that the petitioner and Respondent No, 1 are brothers inter se. The dispute in the suit is with regard to partition of the suit property fallen to their share from their mother. So it is a question of valuable rights in the property and on mere technicalities one should not be non-suited on this score.
4. The learned counsel for Respondent No, 1. when confronted with the question of address at Karachi that too incomplete and as to right of the petitioner in the valuable property, who has been deprived form that due to ex-parte decree, the learned counsel reading the mind of the Court at the very out set requested for adjournment that hehas not prepared the case and had not gone through the file. This Court however, read over the judgment of the learned District Judge/Zilla Qazi where he specially mentioned this fact that the petitioner had not been personally served and asked what is fatal and what harm would he receive if the case is decided on merit, he could not satisfy the Court but again requested for adjournment and reminded this Court that if the Court is not prepared to adjourn the case he withdrawns his Wakalatnama.
5. Since the point is very simple, the Court has gone through the record and read over each and every documents to the leaned counsel for Respondent No,
1. He could not reply to the queries made by this Court, therefore, this Court did not allow the adjournment nor withdrawal of his Wakalatnama.
6. I have gone through the record of the case and perused the documents placed on file. The address of the petitioner given in the plaint is of Karachi that too care of some body else i,e, Asfandyar Baacha of Dir Wala. No personal service has been effected upon the petitioner. No doubt the son of the petitioner, as according to the learned District Judge/Zilla Qazi, used to appear before the Court and requesting for time but appearance of the son who even himself did not know the whereabouts of his father cannot be treated as service upon the petitioner or that he was in the knowledge of the proceedings pending before the trial Court. Times and again the Apex Court of Pakistan had streamlined the guide line a party shall not be thrown out of the Court just because of technicalities as the question of valuable rights always involved. The dispute in the case, in hand is regarding partition of the suit property. The petitioner and Respondent No, 1 are interested parties contesting for their rights. Respondents Nos, 2 to 7 are females and according to the custom and Rewaj of in locality the females avoid shares in the inheritance the presence of male members of the family. So they are disinterested and did not contest the suit.
7. Even otherwise the Courts are not suppose to grant ex-parte decree straightaway in the light of the plaint. In the ex-parte cases the Courts are duty bound to grant ex-parte decree on the available record, evidence on file strictly on merit. Apparently it appears that it is a dispute of inheritance and until and unless it is brought on the record that the other party has availed his due share he cannot be deprived of his right in the property falling to his share from his predecessor.
8. In this view of the situation the ex-parte decree has been granted without applying the judicial mind and without following the basic ingredients which are must in ex-parte cases.
9. I am, therefore, constrained to accept this revision petition, set aside the impugned judgments and decrees passed by the learned Senior Civil Judge/Aala Illaqa Qazi and the learned District Judge/Zilla Qazi, Malakand at Batkhela dated 28.1.2003 and 15.11.2003 respectively and while allowing the application dated 3.11.2002 of the petitioner set aside the exparte decree dated 4.6.1997 and remand the case to the learned Senior Civil Judge/Aala Illaqa Qazi, Malakand at Batkhela with the direction to proceed with the case on merits strictly according to law.