' MUHAMMAD JEHANGIR ARSHAD, J.---This writ petition calls in question the order dated 18-10-2004 passed by learned Additional District Judge, Multan, respondent No,2 accepting revision of respondent No,2 against the order of learned trial Court dated 5-10-2004 dismissing respondent's application for setting the ex parte judgment and decree dated 13-2-2004 passed in a suit for preemption filed by the petitioner.
2. The facts in brief are that against the sale of land measuring 28-Kanal and 180 Marlas situated in Mouza Nawabpur, Multan, through Mutation No,1792 dated 29-11-1998 in favour of respondent No,2, Subha Sadiq and Ashiq Hussain petitioners filed a pre-emption suit on 4-4-1989. However, after full trial the said suit was dismissed by the learned trial Court vide judgment dated 1-2-1993. Against dismissal of their suit petitioners filed an appeal which was accepted by learned Additional District Judge, Multan on 17-7-1995 and the case was remanded to the learned trial Court for framing of additional issue on the question of limitation, recording of evidence and decision of the same afresh in accordance with law. Against the abovementioned remand order, the respondent filed F.A.
0. No,46 of 1995 before this Court but the same was dismissed on 8-4-1999. On the dismissal of F.A.O. By this Court the petitioner moved an application before the learned trial Court for deciding their suit in the. Light of the remand order, mentioned above. On the said application of the petitioners the learned trial Court started proceeding in the civil suit and for Procuring the attendance of respondent/defendant and effecting his service several notices were issued but as his service through ordinary means was found to be not possible, therefore, respondent was summoned through proclamation in the newspapers and ultimately the respondent was proceeded against ex parte by the learned trial Court on 19-6-2002 and after recording ex parte evidence, the learned trial Court decreed petitioner's suit on 13-2-2004. The respondent however, moved an application before the learned trial Court on 26-4-2002 seeking to have the said ex parte decree set aside. The learned trial Court after obtaining reply from the petitioner but without framing issues or recording evidence dismissed the same on 5-10-2004. Against the said order of dismissal of his application, the respondent filed a revision which was allowed by learned Additional District Judge on 18-10-2004 by holding:-- "For the forgoing reasons I hold that the impugned order is not sustainable in the eyes of law.
Consequently, I accept the present revision, set aside the impugned order dated 5-10-2004 and remand the case to the trial Court within the direction to frame issues keeping in view the pleadings of both the parties, recording evidence thereupon and then to decide the application under Order IX, rule 13, C.P.C. On merits in accordance with law. The parties are left to bear their own costs."
' The abovementioned order of the learned Additional District Judge passed in civil revision of the respondent has not been challenged through this constitutional petition.
3. It has been argued by learned counsel for the petitioners that as the order of dismissal of application for setting aside ex parte. Decree moved by the respondent was appealable in terms of Order XLIII, C.P.C., hence the revision petition as filed by the respondent was not maintainable and thus the impugned order of the learned Additional District Judge accepting revision of the respondent and remanding case to the trial Court was result of illegal exercise of jurisdiction.
Reliance to this effect has been placed on the case "Ibrahim v. Mst. Kulsoom Begum" 1973 SCM R
589. It has further been argued by learned counsel that the learned Additional District Judge while passing the impugned order failed to take notice of the fact that the learned trial Court before passing the ex parte decree took all possible measures for procuring the attendance and service of the respondent and it was as a result of its failure to procure his attendance that respondent was proceeded against ex parte and ex parte decree was passed against him and on the basis of said ex parte decree the petitioners obtained possession of the suit property by adopting proper mode of execution. Finally it is contended that the order of learned trial Court impugned in the revision petition was a lawful order and the learned Additional District Judge had no jurisdiction to set aside the same through the impugned order.
4. I have considered the arguments of learned counsel for the petitioners and have also gone through the record.
5. Admittedly the order dated 5-10-2004 passed by learned trial Court dismissing application of respondent for setting aside ex parte decree was appealable order in terms of Order XLIII, C.P.C., against which appeal was competent, whereas revision was filed. However, it is an established principle of law since the case of "Karamat Hussain and others v. Muhammad Zaman and others"
PLD 1987 SC 139 that a revision can be treated as appeal and vice versa, as exercise of appellate jurisdiction as well as revisional jurisdiction was a right and no matter can be dismissed due to this technical defect, provided the same has been filed within the statutory period of limitation as well as after fulfilling the other requirements of law. Further admittedly the order of dismissal of respondent's application for setting aside ex parte decree was passed by learned trial Court on 5- 10-2004 and limitation for filing appeal against such order is thirty days, whereas said .Revision was filed by the respondent on 12-10-2004 which was well within time, even if the same had to be treated as an appeal. Similarly, no objection was raised before the learned Additional District Judge by the petitioners about maintainability of revision and to me the petitioners are estopped from raising such plea in constitutional jurisdiction, especially when the impugned order of the learned trial Court dated 5-10-2004 has been set aside by the learned Additional District Judge on sound reasons after due appraisal of facts and law on the subject. In almost similar circumstances the Honourable Supreme Court of Pakistan in the case "Mst. Noor Jehan v. Mst. Roshan Jahan and 6 others" 1994 SCM R 2265 held that order passed by the District Judge on appellate side could be treated as one on revisional side and vice-versa. The case "Muhammad Hanif and others v.
Muhammad and others" PLD 1990 SC 859 is also to the same effect. Therefore, the contention of learned counsel on the question of maintainability of revision before the learned trial Court is repelled being purely technical in nature.
6. However, so far as the remaining contention of learned counsel is concerned, the impugned order of the learned Additional District Judge dated 18-10-2004 has been perused. Through the said order the learned Additional District Judge has only remanded the case to the trial Court for deciding the matter afresh on merits in accordance with law, after framing issues keeping in view the pleadings of both the parties and recording of evidence. Admittedly the learned trial Court vide order dated 5-10-2004 proceeded to decide the application of the respondent summarily without framing issues and recording evidence. There is no cavil to the proposition as taken by the learned Additional District Judge in the impugned order that question of limitation being a mixed question of law as well as facts, cannot be resolved without recording of evidence. Therefore, there was no justification for the learned trial Court to dismiss the said application by holding the same as time barred merely on the bare assertion of the petitioner, especially without affording opportunity to the respondent of leading evidence to show that he had no knowledge about the ex parte decree dated 5-10-2004. Even the question whether application moved by the respondent for setting aside ex parte decree was covered by Article 164 of Limitation Act or its residuary Article 181 was also not properly gone into by the learned trial Court in the light of the law declared by Honourable Supreme Court of Pakistan in the case "Messrs Rehman Weaving Factory (Regd.), Bahawalnagar v.
Industrial Development Bank of Pakistan" PLD 1981 SC 21. Further the question whether respondent ever received any notice from the trial Court regarding post remand proceedings and that there was any justification for the trial Court to have summoned him by way of substituted service viz. Publication in newspaper can also be determined after recording of evidence and not on bare assertion of the parties. Lastly, there is a considerable force in the findings of learned Additional District Judge that law favours adjudication of disputes on merits so far as possible and no person should be deprived of his right of audience on mere technicalities unless the same are insurmountable. "Muhammad Anwar Khan and 5 others v. Chaudhry Riaz Ahmad and 5 others" PLD 2002 SC 491 is an authority to this effect. The learned Additional District Judge therefore, thought it proper and rightly so to remand the case to the trial Court for decision of application of the respondent afresh after framing of issues and recording of evidence. I see no illegality or irregularity in the impugned order of the learned Additional District Judge.
7. The upshot of above discussion is that this writ petition fails and is dismissed in limine.