' CH. MUHAMMAD MASOOD JAHANGIR, J.---By filing the instant civil revision Muzaffar Ali etc. The petitioners have assailed the judgment dated 12.6.1995 passed by the learned Civil Judge Sheikhupura whereby he dismissed the application under Order 9, Rule 13, CPC filed by the petitioners seeking setting aside of the ex parte judgment and decree dated 28.2.1990 and the judgment dated 07.12.1995 passed by the learned Additional District Judge Sheikhupura through which the appeal filed by the petitioners against the above-referred order passed by the Civil Court has been dismissed on score of limitation.
2. The facts germane for the disposal of the instant revision petition are that respondent/plaintiff filed a suit for possession against Bashir (here-in-after will be referred as defendant) the predecessor-in-interest of the present petitioners regarding the land measuring 10 marlas bearing Square No 106 Killa No 3/2 situated at Mouza Bhikhi District Sheikhupura before the learned Trial Court on 4.12.1987. The defendants put in appearance before the learned Trial Court on 11.1.1989 and the learned Trial Court thereafter required him to file the written statement, but the defendant failed to comply with the order. However, when the case was fixed for 12.12.1989 for submission of written statement, none appeared on behalf of the defendant and the learned Trial Court proceeded against ex parte against him then after recording ex parte evidence led by the respondent/plaintiff the suit was ex parte decreed in his favor vide judgment and decree dated 28.2.1990.
3. The defendant filed an application under Order 9, Rule 13, CPC for setting aside the ex parte proceeding as well as ex parte judgment and decree before the learned Trial Court on 23.7.1990 with the assertion that he had been prosecuting and also engaged Ch. Muhammad Tufail, Advocate as a counsel who shifted to Karachi without any intimation and his clerk was being contacted to know about the proceedings of the suit, who afterwards also became off sight. The defendant claimed that he came to know about ex parte decree dated 28.2.1990 only when warrant of possession was issued. During the pendency of the said application the defendant passed away and he was succeeded by the present petitioners. The respondent contested the said application by filing his written reply and the learned Trial Court framed the following issues:-- -
(1) Whether the petitioner has sufficient ground for setting aside ex parte decree dated 28.2.1990?
OPA
(2) Relief
4. Both.The parties produced their evidence in pros and cons and ultimately the learned Trial Court dismissed the said application vide order dated 12.6.1995. The said order was questioned by the present petitioners before the learned lower Appellate Court by preferring an appeal, which met the same fate having been dismissed by the learned lower Appellate Court vide judgment dated 7.12.1995 on the sole ground Of limitation.
5. Feeling aggrieved with the order and judgment rendered by both the Courts below the instant civil revision was filed before this Court in the year 1998 and at one stage this Court dismissed the instant civil revision vide order dated 20.5,2002. The petitioners filed C.P.No, 1822 of 2003 before the august Supreme Court of Pakistan and vide judgment dated 23.8.2004 the instant civil revision has been remanded to this Court. The relevant portion thereof for ready reference is reproduced as under:--- "8. Without commenting on merits of the submissions of the learned counsel, which might be relevant at the hearing of revision application, it would suffice to say that the High Court, acted illegally by dismissing the revision application, on merits. Adverting to the question of period of limitation, it is settled law that there is no period of limitation prescribed in the statute for making an application under Section 151, CPC and such application would likely be, governed by the provisions of Article 181 of the Schedule to the Limitation Act prescribing a period of three years from the date when right to apply accrues. In the backdrop of the facts and circumstances explained by the petitioners' counsel, it is difficult to hold at this stage that the petitioners deliberately committed delay in making an application for recall/readmission of revision application notwithstanding the vital circumstance that the revision application was wrongly decided on merits.
9. Taking up second submission of the learned counsel that the remedy of appeal against dismissal order being available to the petitioners, recourse to an application under Section 151, CPC was wrongly made, suffice it to say that since the order of High Court itself was without jurisdiction, the petitioners were not bound to challenge it by way of a petition for leave to appeal before this Court. In the facts and circumstances, it was a fit case for exercise of inherent jurisdiction by the High Court itself since the earlier order suffered from misconception of law. We have gone through the precedent case-law relied upon by the respondent and without expressing any cavil to the proposition of law laid down therein, would observe that these cases are of no avail to the respondent.
10. For the above facts, circumstances and reasons without touching the merits of the case, we convert this petition into appeal, set aside the impugned orders dated 20.5.2002 and 3.7.2003 and remand the case to the High Court for expeditious decision of revision application on merits and preferably within three months. No order as to costs."
6. The learned counsel for the petitioners has argued that ex parte decree was based upon ex parte proceedings which were conducted on a date fixed for filing of written statement, which could not be considered a date fixed for hearing and the learned Trial Court was not justified to conduct ex parte proceedings, that the learned Trial Court without appreciating the evidence available on file dismissed the petition filed by the petitioners under Order 9, Rule 13, CPC inspite of that it was fully proved on record that the counsel for the petitioners had left the profession without informing them and, therefore, they were prevented from appearance before the learned Trial Court, that the sufficient cause for non-appearance had been shown by the petitioners before the learned Trial Court by production of evidence, but the learned Trial Court misread and non-read the evidence available on record and committed material irregularity as well as illegality while non-suiting the petitioners/defendants merely on technicality, that the learned lower Appellate Court without touching the merits of the case has passed the impugned judgment dated 7.12.1995 on the sole score of limitation, that law favors the adjudication of the cases on merits, but the case of the petitioners has been thrown away on technical grounds in spite of that basic order vide which ex parte proceedings were initiated against the petitioners was erroneous and without jurisdiction and the petitioners could assail the said order at any stage. The learned counsel for the petitioners while placing his reliance upon the judgments reported as PLD 1977 SC 658, KANCHHEDILAL UMRAO SINGH v. MAURSI RANJEET KACHHI (AIR 1960 MADIA PRADESH P. 140), PIR BAKHSH v. CHANAN DIN (AIR 1927 LAHORE 734), MUHAMMAD HUSSAIN v. ALLAH DAD AND 13 OTHERS (PLD 1991 SC 1104), RAHIM BUX AND ANOTHER v. GUL MUHAMMAD AND 2 OTHERS (PLD 1971 LAHORE 746) and PROVINCIAL GOVERNMENT THROUGH COLLECTOR, KOHAT AND ANOTHER v. SHABBIR HUSSAIN (PLD 2005 SC 337) prayed for acceptance of the instant civil revision, setting aside of the impugned order and judgment passed by the lower Courts and the main suit be remanded for decision on merits after setting aside ex parte judgment and decree dated 28.2.1990.
7. Conversely the learned counsel for the respondent/ plaintiff supported the impugned order and judgment passed by learned Courts below and argued that the defendant had himself absented from the proceedings of the case and failed to file written statement on 12.12.1989 before the learned Trial Court and the learned Trial Court was authorized to proceed him against er parte. He further submitted that the application filed under Order 9, Rule 13, CPC as well as appeal preferred before the learned lower Appellate Court were badly time-barred and bah the Courts below after thrashing the merits of the case as well as legal development passed the impugned order and judgment while rendering convincing reasonings. He has further argued that when the predecessor-in-interest of the petitioners/defendants failed to file written statement despite availing numerous opportunities and then absented from the Court proceedings, the learned Trial Court was quite justified to conduct ex parte proceeding against him. The learned counsel for the - espondent has lastly placed his reliance upon the judgments reported as MST. HAKUMAT BIBI v.
IMAM DIN AND OTHERS (PLD 1987 SC 22), SH. ABDUL SABOOR AND BROTHER v. GANESH FLOUR MILLS CO.
LTD., LYALLPUR (PLD 1967 LAHORE 779), MUHAMMAD REHMAN HASHM AND 4 OTHERS v. MIAN MUHAMMAD ALI THROUGH MAN NISAR AHMAD WARSI (2005 CLC 204), MUHAMMAD HUSSAIN v. ALLAH DAD AND 13 OTHERS (PLD 1991 SC 1104), SHEIKH ABDUL RAHMAN v. SHIB LAL SUHU AND OTHERS (AIR 1922 PATNA 252), SHEIKH MUHAMMAD SALEEM v. FAIZ AHMAD (PLD 2003 SC 628), PROVINCE OF PUNJAB AND OTHERS v. GHULAM SHABBIR (2004 YLR 10(LAHORE), DR. MUHAMMAD SHAHID MIAN AND ANOTHER v.
FAIZ-URREHMAN FAIZI (PLD 2011 SC 676), MESSRS FABNUS CONSTRUCTION (PVT.) LTD. THROUGH CHIEF EXECUTIVE/DIRECTOR v. IFTIKHAR AHMAD AND 4 OTHERS (PLD 2010 LAHORE 452), ABDUL HAKEEM v.
HABIBULLAH AND 11 OTHERS (1997 SCMR 1139), ATIQUR REHMAN THROUGH (REAL FATHER) AND ANOTHER v. MUHAMMAD AMIN (PLD 2006 SC 309) and MST. HAJRA BIBI v. ZARAI TARAQIATI BANK LTD. (ADBP)
THROUGH MANAGER (2005 CLD 1116) and prayed for dismissal of the instant civil revision.
8. Arguments heard and entire record gone through carefully.
9. Before dealing with the arguments addressed at the bar it is worthwhile to examine the relevant provisions i,e, Order 9, Rule 6, CPC under which a Court can proceed ex parte which is reproduced hereunder for ready reference:---- "Order 1X: APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE ' Rule-6. Procedure when only plaintiff appears. (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then: --- ' When summons duly served.---(a) if it is proved that the summons was duly served, the Court may proceed ex parte, [and pass decree without recording evidence]; ' When summons not duly served.---(b) if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant; ' When summons served, but not in due time.-- (c) if is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer. On the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.
(2) Where it is owing to the plaintiff's default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.'"
10. The above-quoted provision has empowered the Court to proceed against the defendant ex parte and pass a decree without recording evidence if the defendant failed to appear before the Court when the suit was called on for hearing. The words "suit was called for hearing" according to provision ibid possess weight and legal importance. The word "hearing" has not been defined in CPC but obviously the said word has been used in different provision with a view to state the different purposes for which a date for hearing of the suit is fixed. The suit has to proceed on various steps to be taken by the Court for dispensation of justice to the parties and many actions at the stages in order to enable or compel the parties to take necessary steps in prosecution of the case the Court has to fix dates for certain actions to be taken. The routine dates could not be called for hearing of the suit and could only be attributed for hearing of that particular matter which is specified in the relevant order of the Court. The word hearing has been interpreted by the superior Courts of the State in the following manner:-
(a) A date fixed for framing of issues
(b) a date fixed for evidence
(c) a date fixed for hearing of final arguments of the suit.
' The said view has been fortified by the judgments reported as MANAGER, JAMMU AND KASHMIR, STATE PROPERTY IN PAKISTAN v. KHUDA YAR (PLD 1975 SC 678), MUHAMMAD TARIQ v. HASIN JAHAN (1993 SCMR 1949), HASHIM KHAN v. NATIONAL BANK OF PAKISTAN (1992 SCMR 707), MUHAMMAD HUSSAIN v ALLAH DAD AND 13 OTHERS (PLD 1991 SC 1104) and ABDUL SATTAR v. MUHAMMAD AKBAR SHAH (PLD 1990 SC 285).
11. Keeping in view the above observation in mind the perusal of case diary maintained by the learned Trial Court reflects that suit was filed by the plaintiff/respondent on 5.12.1988 and the defendant put in his appearance before the learned Trial Court for the first time on 11.1.1989 and on the very next date i,e, 6.2.1989 he was proceeded against ex parte but thereafter his application for setting aside ex parte proceedings was accepted by the learned Trial Court as respondent/plaintiff made a statement for the acceptance of said petition on 17.5.1989 before the said Court. Thereafter the case was fixed by the learned Trial Court for submission of written statement on 7.6.1989, 27.6.1989, 19.7.1989 and 9.7.1989. The perusal of interlocutory order dated 19.9.1989 reveals that written statement was submitted by the defendant and the learned Trial Court adjourned the case for framing of issues to 9.10.1989, when the learned Trial Court framed almost four issues and the case was adjourned for recording of evidence of the plaintiff/respondent for 6.12.1989. On the said date it was brought to the knowledge of the Court by the learned counsel for the plaintiff/respondent that the defendant had filed written statement in another suit titled as Muhammad Shahid, etc. v. Zafarullah and he be directed to file fresh written statement whereupon the learned Trial Court not only deleted the issues already framed vide order dated 9.10.1989 but also adjourned the case for 12.12.1989 for submission of written statement. However, on said adjourned date none appeared on behalf of the defendant and the learned Trial Court preceded him against ex parte. It is vivid from the perusal of above interlocutory orders passed by the learned Trial Court that the case was not fixed for a date of hearing on 12.12.1989, which was a routine date fixed by the learned Trial Court for submission of written statement and the ex pane proceedings could not be conducted under Order IX, Rule 6, CPC.
12. The contention of the learned counsel for the respondent that the learned Trial Court passed ex parte proceedings order against the petitioners/defendants in further progress of the suit under Order VIII, Rule 10, CPC is without any substance, as Court in further progress of the suit directed the respondent/plaintiff to produce his ex parte evidence. So the submission of the learned counsel for the respondent/ plaintiff has no substance as the order dated 12.12.1989 seems to have been passed by the learned Trial Court while invoking provisions of Order IX, kule 6, CPC. The next contention of the learned counsel for the respondent/plaintiff that the defendant could be proceeded against ex parte , for non-appearance on the date when the case was fixed for submission of written statement is also without any substance. The defendant could not be proceeded for non-appearance on the date when only a written statement was to be filed by him as the said date of filing of written statement is not a date of hearing. In this regard reliance is placed upon the judgment reported as PLD 1991 SC 1104. The relevant paragraph of the judgment is reproduced hereunder:--- ' Firstly, we have not yet agreed with the learned counsel that a date for filing of the written statement has to be treated as a date for hearing of the suit. And secondly, the order-sheet does not at all support the learned counsel for the respondents. Regarding the presumption that according to C.P.C. The defendant was required and could file a written statement on any of the dates fixed for the filing of the reply to a miscellaneous application. Suffice it to observe that there was no order by the Court requiring the defendant under Order VIII of the C.P.C. To file a written statement. Regarding the other categories of written statements, the argument of the learned counsel also has no force as it has to be established from the order-sheet that `a particular date was fixed for the filing of any written statement as a reply to the plaint. See also Sakhawatuddin v.
Muhammad lqbal (1987 SCMR 1365)
13. It is a settled principle of law that no period of limitation is prescribed for setting aside ex parte order and the residuary Article 181the Limitation Act, 1908 provides a limitation of three years\ The learned Trial Court erred in law while declaring the application of the petitioners/defendants for setting aside ex parte proceedings as barred by time. No doubt there is a period of limitation has been prescribed for setting aside ex parte decree under Order IX,- Rule 13, CPC, but as the defendant was proceeded against ex parte on 12.12.1989, which was not a date fixed for hearing, and application was filed for setting aside of said order on 23.7.1990, the learned Trial Court was not justified while treating the same as beyond limitation. No doubt the ex parte judgment and decree dated 28.2.1990 has been passed on merit after discussing the ex pane evidence adduced by the plaintiff/respondent but as observed Supra since the above-referred ex parte proceedings were of no legal effect therefore, no limitation would run against above-referred order, which even could be set aside even u/s. 151, CPC. Once the provisions of section 151, CPC are taken into cognizahce, then residuary Article 181 of Limitation Act, 1908 will govern the issue, which provides three years limitation period.
14. The next contention of the learned counsel for the respondent/plaintiff that appeal filed by the petitioners/ defendants against the order dated 12.6.1995 was time-barred and rightly dismissed by the learned lower Appellate Court vide judgment dated 7.12.1995 is not tenable in view of the dictum laid down by the judgment reported HYDERABAD DEVELOPMENT AUTHORITY THROUGH M.D., CIVIL CENTRE HYDERABAD v. ABDUL MAJEED AND OTHERS (PLD 2002 SC 84). In this case the conclusion arrived at by the august Supreme Court of Pakistan in this behalf is reproduced hereunder:--- "....Therefore, keeping in view the merits of the case which have been discussed hereinabove we are of the opinion that if there is delay of 8 days in filing the appeal that is to be condoned in the interest of justice because merely for such technical reason appellant cannot be non-suited and the impugned order dated 4th November, 1999 passed by the High Court cannot be upheld which on face of it is not sustainable in the eye of law as it has been pointed out hereinabove while discussing merits of the case. Therefore, while condoning the delay it is held that the appeals were duly instituted. Even otherwise if on merits the respondents have no case then limitation would not be a hurdle in the way of appellant for getting justice and in such-like situation the Courts should not feel reluctant in condoning the delay depending upon facts of the case under-consideration."
15. As such the delay of 9/10 days in filing of the appeal cannot be held fatal to non-suit the petitioners as the order impugned therein is found to have been passed without jurisdiction and in an illegal manner, and merely on technicality such order cannot be allowed to remain in the field by the Court of law. As such, after condoning the delay it is held that the appeal was duly instituted.
16. Besides the above, the peculiar merits of the case would also fully, justify exercise of revisional jurisdiction by this Court to do complete justice notwithstanding the technical objections raised on behalf of the respondent/plaintiff, have been separately dealt with and found to be untenable. The contents of the plaint filed by the respondent/plaintiff need thorough probe, which related to the interest and rights of the parties regarding the disputed property. The Courts of law must always keep in that even where law requires passing of ex parte decree the Judicial Officers should not adopt the said course in a mechanical and arbitrary manner while omitting to take into consideration the factual and legal aspects involved in the matter as it is sacred duty of the Courts to do complete justice after applying correct law and justice cannot denied as a penalty, but the party claiming for a relief cannot be absolved of its liability to produce sufficient evidence according to law in support of the version.
17. In the present case the respondent/plaintiff has himself admitted in the contents of the plaint that a mutation No, 1459 has been sanctioned in favor of the defendant and paras 4 & 5 being relevant are reproduced hereunder:- "4. That although the plaintiff has become the owner of the land detail mentioned in para No, 1 of the plaint through mutation No, 598 but Professor Hafiz Ullah procured through fraud mutation No 1459 whereby allegedly the land was sold by Saddatullah, Mst. Kalsoom Begum, Khalil Ahmed, Saeed Ahmed and Neelam Nagin for a consideration of Rs, 500/- in favor of Hafizullah and the plaintiff. It is pertinent to note that Saeed Ahmad, Khalil Ahmad and Neelam Nagin were minors in 1982. Malik Saddat Ullah, Mst. Kalsoom Begum, Khalil Ahmad, Saeed Ahinad and Neelum Nagin were not owner of any land in Bhikhi revenue estate in 1982, as such question of sanctioning of Mutation No, 1459 does not arise. The said mutation has also been reviewed by the order dated 28.8.1988, passed by the Collector. Consolidation, Sheikhupura.
5. That the fraud has been practiced upon the plaintiff and Hafizullah has tried to deprive the plaintiff from his right of ownership by transferring land measuring 10 marlas out square No, 106 killa No, 3/2 vide mutation No, 1503 attested on 5.12.1982. Hafizullah has no right or title upon the suit land and he cannot alienate the said land. This fraud has been practiced by Hafizullah by taking undue advantage of the absence of the plaintiff from Pakistan as such the defendant want to deprive the plaintiff from his legitimate rights of ownership. The defendant has knowingly purchased the suit land while he was well aware that Hafizullqh is not owner of the suit land."
' The perusal of said paragraph also reveals that prior to the cancellation of sale reflected in above-referred mutation a decree for possession could not be granted by the learned Trial Court even on the strength of ex pane evidence without any rebuttal thereto. Para-3 of ex parte .Judgment dated 28.2.1990 for ready reference is reproduced hereunder:--- "3. The plaintiff in order to substantiate his claim has examined one witness over and above himself and he has produced the copy of mutation No, 598 as Ex.P-1, a copy of mutation No, 1459 as Ex.P-2, copy of mutation No, 883 as Ex. P-3, a copy of the order of the Collector Consolidation as Ex.P-4 and a copy of register Haqdaran Zameen as Ex.P-5. The ex-parte evidence adduced by the plaintiff fully supports his contention and since, there is no evidence in rebuttal to it, therefore, relying on the ex-parte decree for possession of the land in dispute comprised in square No, 106 killa No, 3/2 measuring 10 marlas after removal of superstructure thereon in favor of the plaintiff and against the defendant."
18. It is also relevant to point out that in the prayer clause the respondent/plaintiff requested for two-fold reliefs of possession firstly after removal of superstructure on the disputed property and alternatively decree for declaration that the sale of specific field number in favor of the defendant was illegal and claimed for partition of the suit property. For facilitation of reference the prayer clause is also reproduced as under:--- "It is therefore, respectfully prayed that a decree for possession of land after removal of super- structures thereon measuring 10 marlas bearing square No, 106 killa No, 3/2 situated at Bhikhi Revenue Estate, Tehsil and District Sheikhupura or in the alternative decree for declaration that the sale of specific field number in favor of the defendant is illegal, void and ineffective upon the rights of the plaintiff and possession through partition of the land through metes and bounds may please be passed in favor of the plaintiff and against the defendant with costs."
' The learned Trial Court without taking into consideration the oral evidence led by the plaintiff/respondent decreed the suit against the mandate of law. As the dispute relates to a property where the petitioners/defendants have raised their construction, the peculiar facts and circumstances of the case demand that the suit should be heard and decided on merits.
Consequently the instant civil revision is allowed, the impugned order dated 12.12.1989 regarding ex parte proceedings against petitioners/ defendants and ex pane judgment dated 28.2.1990 vide which the suit filed by the respondent/plaintiff was ex parte decree passed by the learned Trial Court and the judgment dated 12.6.1995 vide which the application under Order IX, Rule 13, CPC was dismissed as well the judgment dated 7.12.1995 passed by the learned Additional District Judge vide which the appeal filed by the petitioners/defendants was dismissed are hereby set aside.
19. The suit filed by the respondent/plaintiff will be deemed to be pending before the learned Trial Court who will proceed therewith from the stage of filing written statement by the petitioners/defendants while granting fair opportunity and also ensure that it being an old matter the main suit is decided within a period of four months. The petitioners/defendants are also penalized with costs of Rs, 15,000/- (Rupees fifteen thousand only) for their irresponsible attitude in the case.
20. The parties are directed to appear before the learned District Judge Sheikhupura on 15.9.2014 who will entrust the case to the Court of competent jurisdiction for further proceedings.
Ex Parte Order Set Aside/Case Remanded.