' MUHAMMAD JEHANGIR ARSHAD, J.---This writ petition is directed against the judgment/order dated 4-10-2002 passed by learned Additional District Judge/ respondent No.3 whereby the said learned. ADJ while accepting revision of respondents Nos.1 and 2 against the order of trial Court dated 14-3-2002, directed that although the findings of the learned trial Court setting aside decree dated 12-5-1999 would remain intact yet as a result of setting aside the said decree, the suit filed by respondents Nos.1 and 2 titled "Sadiq Muhammad and others v. Faiz Bakhsh" shall be deemed restored and the same shall be decided by the trial Court in accordance with law after giving opportunity to the respondents to file written statement.
2. The facts in brief are that on 22-2-1995 respondents filed a suit before the learned trial Court which was dismissed in terms of Order XVII, rule 2, C.P.C. On 9-10-1996. However, subsequently the respondents filed another suit in respect of same cause of action qua the same property on 6-11- 1998, in which ex parte decree was passed against the petitioner on 12-5-1999. The petitioner on getting knowledge of the said decree dated 12-5-1999 filed an application under section 151 read with Order IX, rule 13, C.P.C. For setting aside the above decree. The learned trial Court after regular hearing i.e. Recording of evidence, etc vide order dated 14-3-2002 besides setting aside the said ex parte decree also passed the following observations:-- "Since the fresh suit on the same cause of action was barred by law, therefore, there is no need to order the fresh trial of the subsequent suit being instituted in the year 1998."
' Against the said judgment of the learned trial Court dated 14-3-2002, respondents Nos.1 and 2 filed revision petition which was accepted by the learned Additional District Judge/respondent No.3 vide order dated 4-10-2002 in the following terms:-- "As a result of decision of this revision petition the subsequent suit filed by the petitioners on 6-11- 1998 will be deemed to be pending and the same shall be decided by the learned trial Court in accordance with law after giving an opportunity to the respondent to file written statement. The file of the case be sent back to the learned trial Court and the parties are directed to appear before the learned trial Court on 14-10-2002."
3. It has been argued by learned counsel for the petitioner that since it was established from the evidence on record that subsequent suit filed by the respondents was barred by Order IX, rule 9, C.P.C., hence, the learned trial Court rightly refused to order restoration of the suit for fresh trial, as the respondents were estopped from filing the second suit on the same cause of action and qua the same subject matter, in terms of Order IX, rule 9, C.P.C. And same was wrongly construed by the learned Additional District Judge while deciding revision of the respondents.
4. On the other hand, learned counsel for the respondents has opposed this writ petition by arguing that conclusions drawn by the learned Additional District Judge were correct and in line with the spirit of Order IX, rule 13, C.P.C. Because the petitioner himself had prayed in his application under Order IX, rule 13, C.P.C. For setting aside the decree and not for the dismissal of the suit. It is further argued that in consequence of the ex parte decree the only way open for the learned trial Court was to have the suit restored and decide the same in accordance with law and the petitioner could raise all the pleas in the written statement to be filed after restoration of the suit and since by the time the ex parte decree was set aside no suit or plaint was pending before the trial Court, hence the learned trial Court was not justified to dismiss the same merely on surmises and conjectures.
5. I have considered the arguments of learned counsel for the parties and perused the available record.
6. Since the findings of the learned trial Court about setting aside the ex parte decree dated 12-5- 1999 were never challenged by respondents Nos.1 and 2 before any competent Court and the said dispute is also not before this Court, hence the same are maintained even otherwise being proper and in accordance with law. However by no stretch of imagination or under any provision of law, the findings of the learned trial Court refusing to restore the original suit after setting aside ex parte decree can be maintained for several reasons, one being that petitioner himself in his application under Order IX, rule 13, C.P.C. Only prayed for setting aside of ex parte decree, therefore, the learned trial Court was not justified to hold that subsequent suit was not maintainable for lack of cause of action or barred by law. The second reason for disagreeing with the disputed findings of the learned trial Court is that unless the fresh suit was restored and written statement was filed bringing forth all the necessary facts to the knowledge of the Court, how the learned trial Court could hold the same as not maintainable for want of cause of action or barred by law as suchlike matters can only be decided after going into contents of the plaint and when the plaint itself was not before the learned trial Court how he could hold the same to be without any cause of action or bad by law. It is now an established principle of law that for deciding matters on the basis of want of cause of action or the same being barred by law, either the expressed findings is to be recorded after recording of evidence or from the perusal of the plaint only but in the present case the learned Civil Judge refused to restore the fresh suit holding that same did not disclose any cause of action or was barred by law. Such practice has also been abhored by the Honourable Supreme Court of Pakistan in the case "Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others" 1994 SCM R 826. The learned trial Court acted hurriedly while refusing to restore the subsequent suit of the respondents although after its restoration the petitioner could either after filing of written statement request the Court to treat the effect of dismissal of the earlier suit under Order XVII, rule 2, C.P.C. By treating the same as preliminary issue and the learned trial Court instead of proceeding with the trial of the entire suit on merits could easily give its verdict by treating the said matter as preliminary. I am therefore, satisfied that the learned Additional District Judge while setting aside the order of the learned trial Court to the extent of restoring the fresh suit and directing its decision on merits, has committed no illegality or irregularity, rather the same is in line with the accepted norms of procedure and also in the interest of justice. This writ petition as such having no force is dismissed.