' WAQAR AHMAD SETH, J.---The petitioner is aggrieved of impugned order dated 15-10-2009 of Senior Civil Judge, Karak whereby his application for setting aside ex parte decree was dismissed and the appeal against the said order was also dismissed vide judgment dated 4-3-2010 by District Judge, Karak.
2. Brief facts of the case are that respondent to No,1 filed a suit for declaration and permanent injunction challenging therein, the seniority list and for counting his ad-hoc service, rendered in PUDB for the purpose, of seniority and all other purposes and ultimately placing him at S.No,3 instead of S.No,30 in the seniority list. Initially defendants in the main suit were placed ex parte and finally ex parte decree was passed on 19-9-2008. Subsequently application for setting aside ex parte decree dated 19-9-2008 was filed on 9-10-2008 by Director General CD&MD, Peshawar/petitioner who was defendant No,3 in the suit.
3. The said application was dismissed vide impugned order dated 15-10-2009 on technical grounds to the effect that the application is not in proper forum and the applicant/defendant No,3 is not the proper person to file the same. The learned Trial Court was of the view that the applicant/defendant No,3 has claimed two reliefs in one application i.e, for setting aside ex parte proceedings and ex parte decree, as well, thus, amalgamating two separate reliefs in one application thus making the forum of application, not maintainable. The appeal of the present petitioner got the same fate, hence this revision petition.
4. The learned counsel for the petitioner contended that basically the suit of the plaintiff was not legal nor proper and as such the trial Court passed an unlawful ex parte decree dated 19-9-2008. It was pointed out that without arraying the incumbents at S. Nos.2 to 29 of the said seniority list, the suit was defective and as such the ex parte decree will generate multiple litigation with the department and will create numerous administrative problems. The learned counsel for the petitioner also referred to the plaint that in the plaint no addresses of the defendants were mentioned and it is not sure that on which address the defendants were served. It was also contended that the application for setting aside ex parte decree was filed by defendant No,3 who is the head of the department and is suppose to protect the interest of the other employees of the department being the custodian of the record and as such a proper person to apply for the setting aside ex parte decree. Learned counsel for the petitioner/defendant No,3 also pressed that his application for setting aside ex parte decree was duly supported by an affidavit and has given very reasonable and genuine grounds for setting aside ex parte decree but the same were not considered, no evidence was recorded, in this respect and on the basis of technicalities the said application was dismissed whereas in the said application it was specifically prayed, at the bottom for setting aside ex parte decree. He relied on PLD 1992 Peshawar 130.
5. On merits of the case the learned counsel for the petitioner stressed that seniority in a post, service or cadre to which a civil servant is promoted/appointed would take effect from the date of regular appointment to that post and for the purpose of seniority in a particular grade, regular appointment is the determining factor and as such present respondent No, 1/decree holder has no right to claim for the ad-hoc services rendered by him. In this respect he relied on 1993 SCMR 609.
6. As against this the learned counsel- for the respondent No,1 submitted that petitioner/defendant No,3 was initially placed ex parte on 25-9-2007, filed an application for setting aside ex parte proceedings on 2-7-2008. The said application was dismissed in default on 9-9-2008 and ex parte decree was passed on 19-9-2008. The petitioner/defendant No,3 never applying for restoration of his earlier application for setting aside ex parte proceedings but had filed the present application with, confusing claims i.e, in the heading he has asked for setting aside ex parte proceedings whereas at the bottom of the said application he has asked for the setting aside ex parte decree and as such his application was defective and not maintainable. Relied on 2011 YLR 2008, 2005 M LD 1514 and PLD 2010 SC 582.
7. Arguments heard and record perused.
8. The present petition under section 115 of the C.P.C. Is filed by Qazi Liaq who is presently posted as Director General, Peshawar Development Authority, Peshawar and when the application for setting aside ex parte proceedings/decree was filed he has signed the same as Director General CD&MD and according to Panel of defendants the Director General CD&MD, Peshawar is arrayed as defendant No,3 in the Panel of defendants, in official capacity and as such being defendant No,3 in main suit the present petitioner was legally competent and authorized to file an application for setting aside ex parte proceedings/decree against him. As regarding the amalgamation of two separate reliefs in one application are concerned, the ex parte decree was the final order and all the previous orders regarding the ex parte proceedings stand amalgamated in the final order and, therefore, very rightly the final order was challenged by way of application for setting aside ex parte decree.
9. Order IX Rule 13 of Civil Procedure Code, 1908 deals with the setting aside ex parte decree whereas Order IX Rule 7 deals with the procedure where the defendants are placed ex parte and when they appear and assigns good cause for previous non-appearance, are allowed to rejoin the proceedings. In the instant case the application for setting aside ex parte proceedings and decree do contain certain reasons and if at all, the opposite side had made any serious objections then it was the duty of the Court to have recorded pro and contra evidence but the learned trial Court without going into the merits of that application has disposed of the said application on the basis of technicalities without keeping in mind the fact that in service matter the interest of all other employees is at stake specially in the cases of seniority and apparently in the present case all the affected employees at S. Nos.2 to 29 of the departmental seniority list were not made party to the suit by the plaintiff/decree-holder. It was the duty of the Court to have seen in the juxta position that applicant/defendant No,3 is the custodian of record and is a person who can assist the Court in respect of record of all the employees, specially in their absence. Technically speaking the said application for setting aside ex parte proceedings/decree contain all the facts and prayers regarding ex parte proceedings as well decree and all the orders regarding ex parte proceedings stand merged in the ex parte decree order. Therefore, it was the duty of the Court to have decided the said application on merits instead of dismissing the same merely on technicalities.
' In view of the above it is held that recording of pro and contra evidence on the application for setting aside ex parte decree was mandatory, in the existing circumstances, therefore, the present civil revision is accepted, the application for setting aside ex parte decree is deemed to be pending before the trial Court, pro and contra evidence be recorded and then keeping in view the celebrated judgments of the superior Court in respect of ex parte proceedings/decree, the said application be decided within a period of three months. The impugned order dated 15-10-2009 of Senior Civil Judge, Karak and impugned judgment dated 4-3-2010 passed by learned District Judge, Karak are set aside. Parties are directed to appear before the trial Court on 15-9-2011.