The petitioner has assailed the vires of order dated 07.07.2011 passed by the learned Additional District Judge, Multan, whereby a civil revision filed by him against order dated 11.02.2011 of the learned Civil Judge 1st Class was dismissed.
2. The facts as emerge on perusal of the record are that Respondent No, 3 filed a suit for specific performance of the contract against the petitioner and Respondents Nos,4 to 6. On 17.03.2010 an application for amendment in the plaint was fixed for hearing but Defendant No, 4/petitioner was proceeded against ex-parte due to his non-appearance. The petitioner moved an application for setting aside the ex-parte proceedings and to review the order dated 17.03.2010 with the contention that he had been appearing on each and every date of hearing and the dates were duly entered on the brief of the 'learned counsel but due to some misunderstanding, he was proceeded against ex-parte through an order recorded by the Reader of the Court. This application was dismissed by the learned trial Court. The civil revision filed by the petitioner was also dismissed.
3. Learned counsel for the petitioner has contended that the petitioner is a bona fide purchaser of the disputed property for consideration and a false suit has been filed on the basis of alleged agreement to sell, which has been maneuvered collusively; that he was present on 17.03.2010 in the Court but was he was marked absent subsequently and ex-parte proceedings were wrongly initiated against him; that he has been deprived of the right to defend the suit illegally and that he was marked absent due to some misunderstanding.
4. Learned counsel for Respondent No, 3 has vehemently opposed the petition. It is contended that the petitioner contumaciously absented himself and has tailored a lame excuse regarding his nonappearance; that the ex parte proceedings cannot be set aside unless it is proved that the defendant was unable to appear due to the reasons beyond his control and that the ex parte evidence has already been recorded so at this stage no ground is available to set aside the ex parte proceedings.
5. On 17.03.2010, only the application for amendment in the plaint was fixed for hearing. If was not a date of hearing in the main suit. The learned trial Court, therefore, could have not passed an order for exparte proceedings in the main suit on the said date and only the petitioner could have been proceeded against to the extent of the application under Order VI Rule 17, CPC. The suit has yet not been decided. Valuable rights of the parties are involved in the lis. The Superior Courts of the country have always appreciated the decision of the civil matters on merits rather than technicalities. The mere fact that the ex-parte evidence has been recorded is not sufficient to deprive the petitioner of the right to defend the suit. Under the law the petitioner could have joined the proceedings even after initiation of ex-parte proceedings. The record reveals that he had been appearing on 08.04.2010, 20.05.2010, 01.09.2010 and some other subsequent dates of hearing. He should have been afforded an opportunity to cross-examine the witnesses. No period of limitation is prescribed for moving an application under Order IX Rule 7, CPC. Article 164 of the Schedule of the Limitation Act, 1908, prescribes limitation of 30 days for filing of the petition under Order IX Rule 13 CPC to set aside a decree passed ex-parte and this period starts from the date of the decree or where the summons are not duly served, from the date of knowledge of the applicant. An application to set aside ex parte proceedings under Order IX Rule 7, CPC can be filed at any stage before the decision of the suit. Article 164 of the Schedule of the Limitation Act does not apply to application under Order IX Rule 7, CPC. In the civil suit regarding property, parties should be given full opportunity to prove their respective contentions as valuable rights are involved in such cases.
The learned trial Court initially acted illegally in proceedings ex-parte against the petitioner and then failed to exercise the jurisdiction vested in it under Order IX Rule 7 CPC by declining the request to set aside the ex-parte proceedings and the learned ADJ also failed to rectify illegality committed by the learned trial Court.
6. For the reasons supra, the writ petition is accepted and the impugned orders are set aside. The ex-parte proceedings against the petitioner are set aside subject to payment of Rs, 5,000/- as costs. The learned trial Court will proceed further from the stage, where the suit was on 17.03.2010 and decide it in accordance with law within shortest possible time by avoiding unnecessary adjournments.