' ABDUL AZIZ KUNDI, J.---Mst. Amina Bibi, petitioner, who was plaintiff in a suit for recovery of damages etc., against the two respondents, has, through the instant writ petition questioned the orders dated 7-1-2006, one passed by Acting District Judge, Peshawar, transferring an application for setting aside ex parte judgment and decree moved by defendant-respondent at her back from the court of Wiqar Ahmad Khan, Civil Judge, Peshawar to that of Senior Civil Judge, Peshawar and the other passed by Senior Civil Judge, Peshawar on the same day, who on receipt of the file on transfer proceeded to accept application moved by defendant-respondent No,2 for setting aside ex parte judgment and decree against him and consigned the file to the record room.
2. Facts precisely stated are that Mst. Amina Bibi sued Attaullah Wazir and Dr. Bashir Ahmad, defendant-respondent No,2 for recovery of damages etc, total amounting to rupees fifty lac, as per details in her plaint, which suit was proceeded ex parte against the defendants-respondents and ultimately decreed by Civil Judge, Peshawai, vide his judgment and decree dated 19-5-2000.
3. During execution, a precept was sent to Lahore for execution of the said decree it was then that defendant-respondent No,2 Dr. Bashir Ahmad on 6-12-2005, moved application for setting aside ex parte judgment and decree, passed against him.
4. It appears that plaintiff-respondent was not being served in the said application and thus was ordered to be served through publication in Daily "The News" for 7-1-2006, on which date Mr. Wiqar Ahmad Khan, Civil Judge's Court was vacant for reasons not available on the record of this writ petition and thus defendant-respondent No,2, who was applicant in his application under Order IX, Rule 13, C.P.C. For setting aside the ex parte judgment and decree, passed against him on 10-5- 2000 rushed to the court of District Judge, Peshawar and moved an application purportedly under Order IX, Rules 8 and 12, Order XVII, Rule 2 read with section 151, C.P.C. Requesting the said court that though Mst. Amina Bibi, plaintiff-petitioner was served through proclamation in Daily "The News" for 7-1-2006, but inspite of proclamation she has not turned up before the court where his application aforestated was pending and accordingly requested that necessary orders be passed to enable Senior Civil Judge to proceed in the suit on the said date and pass appropriate ordeRs, ' Mr. Muhammad Jamal Khan, Additional District Judge was on the said date acting as District Judge, who on the same day proceeded to pass the following orders on his application:-- "Petitioner through his counsel present. An application under Order IX, Rule 2 read with section 151, C.P.C. The application is with regard to the disposal of urgent matters in a case pending in the Court of learned Civil Judge namely; Waqar Ahmad Khan which at present is vacant. The aforesaid application is referred to the Court of learned Senior Civil Judge, Peshawar was for immediate disposal in accordance with raw. The parties are directed to appear in the Court of learned Senior Civil Judge, Peshawar. As notice of advertisement in the Daily The NEWs newspaper has been issued against the opposite party therefore, issuance of notice is dispensed with. Order announced."
5. Mr. Ehsanullah Masood, Senior Civil Judge, on receipt of the aforesaid order on the same day requisitioned the record from the court of Mr. Wiqar Ahmad Khan, Civil Judge-I, Peshawar and there and then while allowing the application moved by defendant-respondent No,2 for setting aside the ex parte judgment and decree, set aside the said judgment and decree and also ordered that file be consigned to the record room after completion.
6. Plaintiff-petitioner on gaining knowledge, filed the instant petition under Articles 199/203 of the Constitution of Islamic Republic of Pakistan, 1973, on 10-9-2007, assailing the aforesaid orders passed against her.
' In ground 'D' she has stated as under:-- "In any case, if this august court deems the filing of revision/appeal as competent, the Hon'ble court may be pleased to allow the treatment of same as such, in further pleasure of condonation of delay for the reason of being 'Parda Naslieen' lady, having acquired knowledge later, getting copies on 8-9-2007 and filing this petition on 10-9-2007 i.e. Just on reopening of this Hon'ble Court after summer vacations."
7. This court, after hearing the learned counsel for the petitioner, had on 14-1-2009, issued pre- admission notice to the respondents, pursuant to which respondent No,2 appeared and filed written statement to writ petition, supported by relevant record, while respondent No,1 Attaullah Wazir insptie of service through publication opted to remain absent and thus proceeded against ex parte by order of Deputy Registrar of this court passed on 3-11-2010.
8. In support of this petition, learned counsel for the petitioner argued that the two orders dated 7- 1-2006, one passed by Acting District Judge, Peshawar and the other by Senior Civil Judge, are the worst kind of misuse of judicial powers by the said two forums and that irrespective of the fact that the said order, particularly, the one passed by Senior Civil Judge, was totally illegal and unwarranted. She having got knowledge with considerable delay opted to challenge the same through this petition under Articles 199/203 of the Constitution of Islamic Republic of Pakistan, 1973 and that in case this court comes to the conclusion that the impugned order should have been questioned through revision petition, the original suit having been valued for purpose of court fee and jurisdiction in the sum of rupees fifty lac, the revision had to be filed before this court because of its pecuniary value and thus this court may in the light of settled law on the subject to convert one type of proceeding into another, convert this writ petition into a revision petition and decide the same on merits.
9. As against that, learned counsel representing defendant respondent No, 2, argued that the impugned judgment of both the courts below passed on 7-1-2006, were revisable and thus this petition under Articles 199/203 of the Constitution is not maintainable. It wis further argued that since the writ petition was filed after a considerable delay and as revision petition was to be filed within ninety days, therefore, such a belated petition cannot be converted into a revision petition and decided on merits.
' Arguments heard. Record perused.
10. The two orders both dated 7-1-2006, one by Acting District Judge, Peshawar and the other by Senior Civil Judge, Peshawar, on the face of it appears to have been passed in complete dis- regard of the law on the subject. The application dated 7-1-2006, available at page 35 of the written statement of the defendant-respondent No,2 in this writ petition would show that plaintiff- petitioner had been served for the said date through proclamation in a Daily for appearance before the court of Mr. Wiqar Ahmad Khan, Civil Judge, Peshawar and so does the proclamation made require her appearance before the said court, copy also available on the record of this ,case.
On the said date, as the application aforesaid shows that Mr. Wiqar Ahmad Khan, Civil Judge, seized of the application for setting aside ex parte judgment and decree was not available and thus an application was moved before District Judge, Peshawar on the same day purportedly to be under Order IX (Rules 8 and 12) Order XVII, Rule 2 read with section 151, C.P.C. And in the said application, it has been specifically stated that plaintiff-petitioner did not turn up before the court of Mr. Wiqar Ahmad Khan, on the said date.
11. On receipt of this application, in all fairness, the Acting District Judge was required to issue notice to the other side, but without caring for complying with such requirement of law proceeded to refer the application pending in the court of Mr. Wiqar Ahmad Khan, to the court of Senior Civil Judge for immediate disposal in accordance with law and notwithstanding the fact that the other side was not present before him, the order passed and reproduced above, directs the parties to appear in the court of Senior Civil Judge, Peshawar and further proceeds to hold that since notice through advertisement in Daily 'The News' has been issued against the opposite party, therefore, issuance of notice is dispensed with. While passing this order, the learned Acting District Judge not only bypassed the relevant provisions of law, but was also mislead by the advertisement in the Daily "The News" for appearance of the plaintiff-petitioner on the said date in the court of Mr. Wiqar Ahmad Khan, Civil Judge and where admittedly, as per contents of the application, moved by defendant-respondent No,2, she had not turned up. Not only this, but the learned Senior Civil Judge also fell into a legal error by overlooking the settled law on the subject and probably because of the directions given to him by the learned Acting District Judge that he proceeded to accept the application moved by defendant-respondent No,2 for setting aside ex parte judgment and decree passed against him and also instead of restoring the original suit and putting it for trial afresh, he ordered that the file be consigned to the record room after completion.
12. Such a disposal of the matters by the two judicial forums can hardly be approved by this court, as the same proceeds against the law on the subject. Such orders as and when brought before the higher forums, are required to be struck down.
13. Though such orders can be struck down even in the present petition in its present form under Articles 199, 203 of the Constitution of Islamic Republic of Pakistan, 1973, but still when we are possessed of powers to convert these proceedings into a revision petition, we accordingly convert the same into revision petition and while admitting the same to full hearing, allow the same, set aside the impugned order and judgment dated 6-1-2010, passed by Senior Civil Judge, Peshawar, resulting into restoration of the application moved by defendant-respondent No,2 for setting aside ex parte judgment and decree against him and direct the said court to proceed with the said application for its decision afresh in accordance with law and strictly on merits. This order notwithstanding the fact that the revision petition on the face of it is barred by time, but when this court is possessed of exercise of such powers, even suo motu, the question of limitation or any alike technicality in doing justice and undoing such illegal, unlawful and without jurisdiction orders would never be a hurdle. While holding so, we are guided by law settled in the case of Sadaqat Ali Khan through L.Rs, and others v. Land Acquisition Collector and others" (PLD 2010 SC 878), where a larger bench of six llon'ble Judges of the apex Court in paras 15 and 16 of the judgment (pages 894 and 895 of the report), held as under:-- "What is discernable from the above quoted judgments and others is that the basic object behind establishment of Courts in a society was never just to administer law but was, in fact, to dispense justice. The ultimate goal sought to be achieved by the courts was thus to do complete justice between the parties and to ensure that the rights were delivered to those to whom they belonged and no hurdles were ever considered strong enough to detract the Courts from reaching the said end. Incorporation of provisions such as section 151, C.P.C.; section 561-A in the Cr.P.C.; revisional powers of wide amplitude exercisable even suo-motu under section 115 of the C.P.C. And section 439 of the Cr.P.C.; various provisions of the like contained in Order XLI, rule 4 and Order XLI, rule 33 of the C.P.C.; the provisions of Order XXXIII, rule 5 of the Supreme Court Rules of 1980; suo motu powers exercisable under Article 184(3) of the Constitution and provisions of Article 187 of the Constitution, are some of the examples which could be quoted as having been made available to the Courts at all levels to surmount any impediments which a court might confront in the path of doing complete justice. With respect to the proceedings under the Land Acquisition Act, it may also be added that the same are of a rather peculiar nature as in the ultimate analysis what is required to be determined under the said Act is the value of the acquired land. Once the same stands resolved then the Acquiring Authorities becomes repositories of the said value of land as a trust for the ones who own the same which authorities are then obligated to identify the said persons and to discharge the said trust by paying the same to them.
16. And what is further deducible from the long line of judgments, some of which have been quoted above, is that once a judicial determination, be it of a point of fact or of a point of law, has been made and if such a determination covers not only the ones litigating before the Courts but some others also, then the dictates of justice would command that the benefits accruing from such a determination should not be restricted only to the litigating parties but should be extended even to those who had not indulged in litigation unless there were some extra-ordinary un-exceptionable reasons to the contrary and that all powers, including the powers inherent in the Courts be invoked for the purpose. This would not only ensure justice for all but would also have the effect of eliminating un-necessary litigation. And respectfully following these judgments, we endorse the views expressed therein."
(Emphasis supplied)
14. Since, learned counsel for the defendant-respondent No,2 requested that he would be proceeding on general adjournment with effect from 18-12-2010, thus on his request we direct both the parties to appear before Senior Civil Judge, Peshawar on 30-11-2010, who shall on receipt of the copy of this judgment, immediately requisition record of the main suit as well as the application for setting aside ex parte judgment and decree and on the parties' appearance, proceed with its disposal, may be on, day to day basis, but shall positively decide the same within fifteen days from 30-11-2010. Office is directed to register this case as a revision petition and after doing so immediately send copy of this judgment to Senior Civil Judge, Peshawar, for information and necessary action. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.