' MUHAMAD ALAM KHAN, J.---Impugned herein is the order of learned Additional District Judge-V, D.I. Khan vide which the learned Judge rejected the application of the defendant-appellant, dated 12-6-2007 for setting aside the ex parte decree, dated 27-2-2007.
2. Briefly narrated, the facts of the case are that Muhammad Kashif plaintiff-respondent filed a suit for recovery of Rs.4,00,000 (Four hundred thousands) on the basis of a pro note, dated 3-8-2006 under the summary jurisdiction as envisaged under the provisions of Order XXXVII, C.P.C.
3. On presentation of the plaint, the defendant-appellant Muhammad Idrees appeared before the trial Court and submitted an application, dated 27-1-2007 seeking leave of the Court and to defend the suit. The learned trial Court, after calling for replication, adjourned the case to 27-2-2007 and on the date fixed, neither the defendant-appellant nor his counsel was present and thus, while dismissing the leave to defend application, the learned Court also decreed the suit of the plaintiff- respondent on the basis of pro note aforesaid.
4. The defendant-appellant, on coming to know regarding the ex parte decree, moved an application on 11-6-2007 praying therein that the ex parte decree be set aside and the matter be decided on merits. The learned trial Court, after calling for replication and hearing the learned counsel of the parties, rejected the application on 11-10-2007 mainly on the ground that the defendant-appellant had made appearance before the Court and later on got himself absented and so, when once knowledge is proved regarding the date of hearing, then, he ought to have submitted the application within the stipulated period of limitation as envisaged under Article 164 of the Limitation Act. Further ground for dismissal of the application was that no sufficient cause has been shown by the defendant for setting aside the ex parte decree. It was also held that the averments in the .Application regarding the alleged compromise have got no nexus with the suit proceedings and thus, that cannot be taken into consideration while deciding the question of setting aside ex parte decree.
5. Mr. Tariq Aziz Baloch, learned counsel appearing on behalf of the defendant-appellant submitted that in the application, disputed questions of facts had been agitated and the learned trial Court was not justified to summarily dismiss the application, rather opportunity to lead evidence pro and contra in support of the application ought to have been given to the defendant-appellant and thus, the order of the learned trial Court is violative of the well known maxim of law that, "no-one should be condemned unheard", which is so well entrenched in our judicial system. The learned.
Counsel prayed that the impugned order is not only harsh but also violative of the principle of natural justice..
6. On the other, hand, Mr. Salimullah Khan Ranazai, learned counsel for the plaintiff-respondent submitted that the defendant-appellant was in the know of the proceeding as he had appeared and submitted and application for leave to defend, thus, he was bound to submit an application within thirty days of the passing of the ex parte decree as envisaged under the provisions of Article 164 of the Limitation Act and thus, the order of the learned trial Court is based on sound interpretation of the provisions of law and learned trial Court has rightly dismissed the application.
7. I have given my anxious consideration to the submissions made by learned counsel for the parties and have gone through the record of the case minutely.
8. Perusal of the record reveals that on the date when the ex parte decree was passed, the matter before the Court was fixed for hearing of an interim application for leave to defend and the Court could only restrict itself to proceedings on the interim application. Thus, the act of the Court, dismissing the application and simultaneously decreeing the suit, was violative of the dictum rendered in the case of Muhammad Aslam v. Falak Sher (1990 CLC 1119 Lahore).
9. It is also an admitted fact on the record that while submitting the application for setting aside of the ex parte decree, the defendant-appellant had agitated the disputed questions of facts in the application which require the recording of proof and disproof and the order of trial Court summarily rejecting the application is violative not only of the maxim of law referred to above but also violative of the principles of natural justice. Once a disputed question of law and fact is agitated in the application for setting aside the ex parte decree, the trial Court is bound to afford and opportunity to the parties to lead pro and contra evidence as held in Hassan Din and another v. Jalal Din and 2 others (1992 CLC 33 Lahore).
10. In view of the facts and circumstances of the case narrated above, this appeal is accepted, the order of the learned Additional District Judge-V, D.I. Khan, impugned in this appeal, is set aside and the case is sent back to the learned trial Court with the direction to afford an opportunity to the parties to lead pro and contra evidence with respect of their contentions raised in the application for setting aside the ex parte decree. The application for setting aside the ex parte decree, dated 11- 6-2007 submitted by Muhammad Idrees defendant-appellant before the learned trial Court shall be deemed to be pending and the learned trial Court is directed to dispose of the same on merits keeping in view the observations recorded by this Court. Parties are directed to appear before the learned Court of Additional District Judge-V, D.I. Khan on 21-6-2008.