1. MUSARRAT HILALI, J.--- Impugned herein is the order dated 7-1-2012 passed by Senior Civil Judge, Peshawar whereby application of the appellant for setting aside ex parte decree dated 7-9-2012 has been dismissed.
2. 2.Briefly, facts of the case as per record are that respondent No.1 brought a suit against the appellant for recovery of Rs.10,98,800 along with mark-up amounting to Rs.13,50,000. Notice issued to the appellant stood served upon him whereafter his attorney, namely, Imran made appearance before the learned trial Court on 21-2-2009 and he was directed to produce original power of attorney and written statement, however, on two subsequent dates i.e. 21-3-2009 and 31-3-2009 he failed to comply with the order. On 16-4-2009, the Presiding Officer was on leave, hence the case was adjourned for 2-5-2009 on "Note Reader", on which date neither the appellant nor his attorney appeared before the learned trial Court, therefore, ex parte proceedings were initiated against the appellant and after recording ex parte evidence the learned trial Court vide his order dated 7-9- 2009 passed an ex parte decree in favour of respondent No.1 against the appellant, whereafter execution proceedings were initiated against the appellant on 7-11-2009. Warrant of attachment was issued in respect of H.No.19, Sector J-3 Phase-II Hayatabad, Peshawar. On getting knowledge, the appellant filed an application on 26-3-2011 for setting aside the decree dated 7-9-2009 along with an application for condonation of delay, and also for suspension of execution proceedings. All the three applications were dismissed by the learned court on 7-1-2012, hence the instant appeal.
3. 3.Learned counsel for the appellant submitted that the judgment and decree passed by the learned trial Court is against the law, facts and material available on record, hence not sustainable; that the appellant has not been treated in accordance with law as no personal service has been effected on the appellant nor the substituted service has been adopted in the prescribed manner; that the publication has been made in Daily "Din", which is not a widely circulated newspaper; that it was in the knowledge of respondent No.1 that the appellant had already shifted to Islamabad but this fact was concealed from the learned trial Court. Learned counsel added that neither the appellant authorized any person to appear on his behalf before the trial Court nor was any Wakalat Nama duly signed by him was submitted before the learned trial Court, therefore, the ex parte decree passed against him is against the law, which requires to be set at naught.
4. 4.As against that learned counsel for respondent No.1 submitted that the application filed by appellant is hopelessly time barred; that after exhausting all the modes of service including affixation, publication was made in Daily "Din", that the attorney of the appellant made appearance before the trial Court on two dates and thereafter neither the appellant nor his attorney appeared before the learned trial Court, hence were placed ex parte; that the appellant was aware of case pending against him but he was intentionally avoiding appearance before the learned trial Court, therefore, the impugned order is in accordance with law, which needs no interference by this court.
5. Arguments heard and record perused.
6. 5.The contention of the learned counsel for the appellant that he was not served has force in it as the publication was made in Daily "Din", which is not a widely circulated issue. The record reveals that one Imran appeared as attorney of appellant but he failed to produce original power of attorney nor any Wakalat Nama was submitted before the Court on his behalf. On 16-4-2009, the Presiding Officer was on leave and the date was adjourned to 2-5-2009 on "Note Reader". Further, on 2-5-2009, the learned Senior Civil Judge, initiated ex parte proceedings against him. When the date was adjourned on "Note Reader", which was not the date of hearing, the order of the learned trial Court for initiating ex parte proceedings against the appellant was made on an adjourned date, which is not valid order. The appellant specifically claimed that he got the knowledge of ex parte decree on 26-3-2011 but the learned trial Court without recording pro and contra evidence dismissed the application of the appellant being barred by time. Admittedly, limitation is a mixed question of law and fact, which cannot be decided without recording pro and contra evidence.
7. Moreover, the query made by the learned Senior Civil Judge in the last para of its judgment held as under:--- "One Imran attended the court on 21-2-2909 on behalf of the petitioner and sought adjournment for production of power of attorney and the written statement. He again availed the opportunity for the same purpose on 21-3-2009 and the case was fixed for 31-3-2009. However, neither the said person nor any body else attended the court on behalf of the petitioner, thereafter, this fact has not been mentioned by the petitioner at all in his petition as to why the said person appeared, what was his relationship with him, who was he, why he attended the court on his behalf and what action he has so for taken against the said person. These are material questions and in the absence of addressing these, the petitioner cannot be allowed to impugn proceedings of the case".
8. 6.In these circumstances, the learned Senior Civil Judge was not justified to reject the application of the appellant summarily without recording pro and contra evidence, therefore, instant appeal is allowed and the impugned order is set aside. The appellant is permitted to contest the case/suit before the learned trial Court. The learned trial Court is directed to decide application of the appellant after recording pro and contra evidence by providing opportunity of hearing to the parties. Office is directed to send the record to the learned trial Court immediately.