' SARDAR SHAUKAT HAYAT, J.---Questioned herein is the judgment and decree dated 23-11-2010 of learned District Judge/Zilla Qazi, Shangla vide which the appeal filed by petitioners against the judgment and decree dated 3-3-2009 of learned Civil Judge/Illaqa Qazi, Alpuri was dismissed.
2. Brief facts of case are that respondent No, 1/plaintiff filed a suit for decree of declaration and permanent injunction against the petitioners and respondents 2 to 4 in the court of learned Senior Civil Judge/Aala Illaqa Qazi, Shangla at Alpuri to the effect that the District Government approved the Tender work of respondent No,4 for protection of land and house of plaintiff and some advance amount was also paid to respondent No,4 but so far no work has been started and the respondents/defendants be directed to complete the construction work as approved. A prayer for perpetual injunction was also sought in the plaint.
3. Defendants were put on notice by learned trial Court but due to absence of the petitioners they were proceeded ex parte. Later on, ex parte evidence of the plaintiff was recorded and on the basis of ex parte evidence vide order dated 2-3-2009 an ex parte decree was passed in favour of plaintiff against the petitioners and respondents 2 to 4.
4. Petitioners filed an application for setting aside ex parte proceedings and ex parte decree before the learned trial Court, which was dismissed on 3-3-2010, after hearing the opposite party. Being aggrieved, the petitioners filed appeal before the learned appellate forum which was also dismissed by the learned District Judge/Zilla Qazi vide order dated 23-4-2010, hence the revision petition in hand.
5. Learned counsel for petitioners argued that admittedly the application filed by petitioners for setting aside ex parte decree is time barred but the petitioners were never served and that in those days in Shangla (Swat) the situation was worst and that the petitioners came to know about the decree against them when they appeared in the execution proceedings filed by plaintiff/decree- holder. Learned counsel also argued that the law and judgments of the superior courts favour the decisions on merits instead of technicalities. Further argued that the suit was not maintainable and government was not arrayed as respondent/defendant in the plaint.
6. As against that learned counsel for respondent No,1 opposed the instant revision petition and supported the impugned judgments and decrees of the courts below.
7. Perusal of the record reveals that the petitioners were proceeded ex parte on 8-11-2008 when for the first time summons were issued by the learned trial Court against the defendants. No substituted service was effected upon the petitioners by the learned trial court. Later on, ex parte evidence was recorded and an ex parte decree was passed against the petitioners on 2-3-2009.
Meanwhile, execution proceedings were started against the petitioners, wherein, they put up first appearance on 30-10-2009. However, the application for.Setting aside ex parte decree was filed by petitioners on 23-11-2009, which was dismissed by the learned trial court on the ground that no cogent reason for default as well as delay has been explained in the application by petitioneRs, Learned appellate court also upheld the judgment and decree of learned trial court. The learned trial court after issuance of notices to the petitioners for the first time, proceeded ex parte against them, holding that they were served. The learned trial Court did not opt for issuance of the substituted service against the petitioners, which the learned trial Court was required to do under the relevant provision of Civil Procedure Code in the best interest of justice.. The learned trial Court also dismissed the application for setting aside ex parte decree without giving chance of evidence to the petitioners in support of their assertion. The learned trial Court passed the ex parte decree against the petitioners without discussing the evidence on record and also without looking into the A matter that whether the suit of plaintiff without impleading the government is maintainable and whether a decree could validly be passed in pursuance of the plaint filed by the plaintiff.
8. There also appears some negligence of petitioners in filing the application for setting aside ex parte decree. The petitioners though appeared before the executing court on 30-10-2009 but instead of filing the application on the same day, filed it on 23-11-2009. However, I am B of the view that as valuable rights of the petitioners are involved in the instant case and also that the inadequacy of sufficient cause should not stand in the way of justice on merits. The objective of the courts is to do full and substantial justice in the cause after allowing due opportunity of hearing to the parties. It is also held by the Hon'ble apex court that since it is settled principle of law that the cases should be decided on merits and technical knock out sparingly be resorted to. Reliance is placed on cases titled Hamidullah Khan and another v. Ch. Muhammad Jameel and others reported through 2003 SCM R 995 and case titled Provincial Government through Collector, Kohat and another v. Shabbir Hussain reported through PLD 2005 SC 337. As such the instant revision petition is allowed but at the payment of cost of Rs,5,000 to be paid by the petitioners to respondent No,1 before the learned trial Court. The impugned orders as well as ex parte decree are set aside. The case is remanded back to the learned trial Court with direction to allow the petitioners to proceed with the trial of the case. No order as to costs.
' Parties are directed to appear before the learned trial Court on 8-11-2010.