' MUHAMMAD ALAM KHAN, J.--- Karam Elahi, petitioner herein, has through the instant revision petition, called in question the judgment and decree dated 12-5-2005 passed by the learned Additional District Judge-IV, D.I. Khan, whereby his appeal against the judgment and decree dated 25-4-2003 passed by the learned Civil Judge-IX, D.I. Khan decreeing pre-emption suit of the plaintiff Abdul Ghani against him and others was dismissed on the ground of limitation alone.
2. According to the averments made in the plaint filed by the plaintiff, Abdul Ghani, the defendant No.1 Karam Elahi had purchased the suit property measuring 12 Kanals through Mutation No.1739 attested on 30-5-1996 for sale consideration of Rs.24,000 from Muhammad Akbar, defendant No.2, but in order to defeat the preemptive rights of the plaintiff, it was given the colour of exchange and that the subsequent exchange Mutations Nos.1738 and 1740 date 15-2-1995 showing that defendant No.1 had exchanged the property in Khata No.143 with defendant No.2 for better management were illegal and ineffective upon his rights. This transaction was challenged by the plaintiff by instituting a pre-emption suit in the Court of Civil Judge-IX, D.I. Khan, on the ground that he being a co-sharer in the suit property, had superior rights of pre-emption over the same qua defendant No, 1 .
2-A. The suit was hotly contested by defendants Nos.1 and 3 to 8 by filing joint written statement where pleadings of the parties gave rise to the framing of ten issues including the relief. After appreciating evidence of the parties, suit of the plaintiff was decreed vide judgment and decree referred above. Not contended therefrom, defendant went in appeal to the appellate Court along with an application for condonation of delay as the appeal was filed after the prescribed period of limitation, i.e. After one year and six months. Nonetheless, the appeal was dismissed on the ground of limitation alone vide judgment and decree impugned herein. Hence this revision.
3. Mr. Rustam Khan Kundi, learned counsel for the petitioner argued that the impugned judgments and decrees of both the Courts below are legally not sustainable as they are based on misreading/nonreading of material evidence brought on record and misapplication of law on the subject. He argued that the petitioner had remained unheard as ex parte decree was passed against him on 25-4-2003 by the trial Court about which he had no knowledge till October, 2004 where against his regular first appeal along with an application for condonation of delay filed on 30-10-2004 were also dismissed on 12-5-2005. He urged that the matter was required to have been decided on merits after hearing the parties and the dismissal of appeal of the petitioner on account of limitation was not lawful.
4. Mr. Abdul Qayum Qureshi, learned counsel for the respondents, defended the impugned verdicts of the Courts below on the grounds that the petitioner was duly served in the case but wilfully he remained absent on the date fixed and thus the ex parte judgment and decree against him was correctly passed. He urged that thereafter the petitioner remained mum for sufficiently long period of one year and six months with no plausible explanation and thus the dismissal of his appeal on the ground of limitation was also justified. It was further submitted that non-service of a party or improper service will not be a ground for filing application under the provisions of section 12(2), C.P.C. Which is only restricted to the situation when the judgment and decree is challenged on the ground of fraud, misrepresentation and want of jurisdiction as held in the case of Naser Khan and others reported in 2007 CLC page 326.
5. I have heard learned counsel for the parties and with their valuable assistance perused record of the case minutely.
6. Perusal of record of the trial Court reveals that this suit was repeatedly transferred from one Court to another and finally when the lis came for hearing before the Court vide Order Sheet No.59 dated 12-6-2002, the Presiding Officer had been transferred and the case was adjourned as 'Note Reader' for 8-7-2002 on which date when none appeared on behalf of the defendant/petitioner, thus his defence was struck off on 8-7-2002, though the defendant had never requested for adjournment and the order of the learned trial Court that notice under the provisions of Order XVII, rule 3, C.P.C. Was given to the defendant is unwarranted, as on the adjourned date on Note Reader, the defendant was not present. When the date is adjourned on Note Reader, no penal provisions of C.P.C. Or ex parte action can be taken against a party as held in the case of Mst. Gohar Taj v. Sajjad and others reported in 2003 YLR 1994. So the order of the learned trial Court was ab initio void and without jurisdiction and no limitation can come as a hurdle to set aside a void order.
7. Furthermore, the learned appellate Court has also not exercised the jurisdiction properly by not allowing the condonation application filed by the petitioner while filing the appeal, as when an order is passed at the back of the party and without notice to him, the mischief of limitation will not come in his way, as held in the case of Corporation of Calcutta v. AC Paul reported in AIR 1931 Calcutta page 806 and Mst. Bibi Fatima v. Noor Muhammad reported in PLD 1951 Lahore page 147.
8. The judgments and decrees of the two Courts below are patently illegal and materially irregular not based on sound appreciation of evidence, besides being perverse are liable to be struck down.
9. In view of the facts and circumstances of the case narrated above, this revision petition is accepted, the impugned judgments and decrees of the two Courts below are set aside and the case is remanded to the trial Court with the direction to decide it afresh after affording the parties an opportunity of hearing and leading evidence. Parties are directed to appear before the trial Court on 18-10-2008.
' Above are the reasons for my short order of even date.