Through this civil revision petition petitioners have challenged vires of judgments and decrees dated 10.01.2013 of the learned Civil Judge, Lahore whereby suit of respondent Abdul Razzaq for possession was decreed and dated 20.10.2014 of the learned Additional District Judge, Lahore who dismissed appeal of petitioners.
2. Succinctly, facts giving rise to instant civil revision are that respondent instituted suit against petitioners for declaration and possession of land measuring 2-Marlas 222-Square feet falling in Khasra No, 10696/3965, 10699/3965, 10700/3965 situated in Baghbanpura Nai Abadi, Lahore on the basis of sale deed. Petitioners were summoned who filed their controverting written statement basing their claim on agreement to sell and also on sale deed bearing document No, 3828 dated 26.02.1979 in favour of their predecessor in interest namely Mehr Din and on 28.04.2003 case was fixed for arguments on application under Order XXXIX Rules 1 & 2, CPC when on said date respondent made application for ascertaining amount of Court fee payable and on 30.05.2006 the said application was fixed for arguments, however, ex-parte proceedings were initiated against petitioners despite that the case was fixed for arguments on application and main case was not fixed for hearing. On 01.11.2006, petitioners filed application for setting aside ex-parte order dated 30.05.2006, however, application was dismissed vide order dated 08.11.2008 and subsequently ex- parte oral as well as documentary evidence of respondent was recorded and the learned Civil Judge decreed suit of respondent vide judgment and decree dated 10.01.2013 and feeling aggrieved, petitioners preferred appeal before the learned Additional District Judge, who dismissed appeal of petitioners, hence this petition.
3. Arguments of learned counsel for parties have been heard at length and available record has minutely been scanned.
4. Through his suit, Abdul Razzaq, respondent had sought for decree for declaration and for recovery of possession after demolishing construction raised by defendants with consequential relief in respect to property having been fully described in caption of suit, however, the suit was controverted and order sheet annexed with petition in hand reflects that on 16.10.2002 written statement alongwith written reply to application under Order XXXIX Rules 1 & 2, CPC was submitted and case was adjourned for arguments on application under Order XXXIX Rules 1 & 2, CPC, however, on 28.04.2003 the plaintiff submitted application to ascertain Court fee to be affixed on the plaint and the said application was fixed for arguments and thereafter on 30.05.2006 case was fixed for arguments on application when on said date ex-parte order was passed against petitioners whereafter case was fixed for ex-parte evidence, however, on 15.12.2006 petitioners made application seeking for setting aside ex-parte order and till then no exparte evidence was recorded. The learned Civil Judge vide order dated 08.11.2008 dismissed application seeking for setting aside order, however, petitioners joined proceedings and in their presence evidence of respondent was recorded and on 12.12.2012, the learned Civil Judge declined request of petitioner to produce evidence and ultimately on 10.01.2013 decreed suit.
5. Memorandum of appeal annexed with petition has also been perused which also reflects that petitioners had agitated grounds before the learned Additional District Judge that order dated 30.05.2006 through which ex-parte proceedings were initiated against petitioners was illegal and that order dated 08.11.2008 through which application for setting aside ex-parte proceedings/order was dismissed was also illegal and not substantiated in the eye of law, however, learned counsel for respondent has vehemently argued that order dated 08.11.2008 whereby application of petitioners for setting aside ex-parte order was dismissed had never been impugned before any Court of law, however, the law on subject is that an interim order always merges in final judgment and any party aggrieved of interim order may challenge same while assailing final judgment in appeal and it is also the law that when an appeal is filed against ultimate decision, whole case including all interim orders passed in the case are reopened and can be challenged before Court of appeal hearing the appeal filed against final decision whereby suit was ultimately disposed of Reliance is placed on judgment reported as "Shamshad Khan and another vs. Arif Ashraf Khan and 2 others" (2008 SCM R 269) and "Mst. Khurshid Begum and others vs. Ahmad Bakhsh and others"
6. Petitioners also impugned order of learned Civil Judge passed in the application for setting aside ex-parte order before the learned Additional District Judge and this ground raised by the revision petitioners has been addressed by learned Additional District Judge by observing as under:- "Perusal of record reveals that in respondents' filed suit, appellants initially appeared before the learned trial. Court contested the suit by filing their written statement, however, thereafter absented themselves and were proceeded as ex-parte vide order dated 15.12.2010. Appellants after the initiation of said ex-parte proceedings filed petition for setting-aside of said ex-parte proceedings, however, their said filed petition was also dismissed. The appellants never assailed both the said orders before higher forum, therefore, in this way, both the orders have attained finality in the eyes of law"
However, this observation of learned Additional District Judge vide judgment dated 20.10.2014 is not according to law and in violation to the dictates of Superior Courts.
7. Learned Civil Judge while dismissing application for setting aside ex-parate order dated 08.11.2008 observed that ex-parte order was passed on 30.06.2006, whereas application for setting aside ex-parte order was moved on 01.11.2006 which was beyond the period of limitation of 30- days, however, the learned Civil Judge while passing order dated 08.11.2008 whereby application for setting aside ex-parte order was dismissed mis-appreciated the law on subject. It has been observed in case law reported as "Mohammad Zaman vs. Abdul Razzaq and 56 others" (2005 CLC 689) that ex-parte order or proceedings can be set aside any time before conclusion of trial, provided that application for the same was made within a period of 3- years as provided by Article 181, Limitation Act, 1908 and it has also been observed that a defendant having stated reasons for his nonappearance, whatever their worth was it could be decided after providing an opportunity to him to substantiate the same and failure on the part of Trial Court and disposal of his application for setting aside ex-parte proceedings, in a summary manner, is unwarranted and not a proper exercise of jurisdiction. In this case, learned Civil Judge in a summary manner passed order dated 08.11.2008 while dismissing application for setting aside ex.-parte order dated 03.06.2006 and thus, it seems that no opportunity was provided to the petitioners substantiate their claim in application for setting aside ex-parte order. It has also been held in case law reported as "Mehmood Hussain Shah and others vs. Mst. Parvaizi Bibi and others" (2013 YLR 1584) that no period of limitation is prescribed for setting aside ex-parte order and period of limitation prescribed is for setting aside ex-parte decree only and in this case finding of the learned Civil Judge that petitioners moved application for setting aside ex-parte order after 30-days is not according to law and even otherwise law favour adjudication of lis after providing opportunity of hearing to both the parties and it is settled principle of law that no one should be condemned unheard.
8. After passing of ex-parte order dated 30.06.2006 the petitioners joined proceedings and in their presence evidence of Abdul Razzaq PW-1, Mohammad Sharif PW-2 and Riffat Sultana PW-3 was recorded and learned Civil Judge allowed the petitioners to conduct cross examination on the witnesses of plaintiff, however, vide order dated 12.12.2012 the learned Civil Judge observed that the defence of petitioners was struck off, therefore, their evidence could not be recorded, however, it is on record that written statement was duly submitted by petitioners and that after submission of written statement and written reply of application under Order XXXIX Rules 1 & 2, CPC the case was fixed for arguments on miscellaneous application when on the said date ex-parte proceedings were initiated against petitioners and it is not denied from any corner that written statement was not filed and once case was fixed for arguments on miscellaneous application, ex-parte order in suit is not legally sustainable as under the law- the petitioners have a right to be treated in accordance with law and could have availed opportunity to defend suit instituted against them and in the circumstances when case was fixed for arguments on miscellaneous application, at the most ex-parte order would have been passed in miscellaneous application which was fixed for arguments on the date when ex-parte order was passed against petitioners.
9. A similar proposition has also been discussed in judgment reported as "Police Department through Deputy Inspector-General of Police and another vs. Javid Israr and 7 others" (1992 SCM R 1009) wherein, the Hon'ble Supreme Court has observed that if a defendant in spite of service does not appear on the day fixed in the summons, the Court may proceed with the suit notwithstanding the absence of defendant and if he, later on, is able to assign good cause for his previous non- appearance, he can be relegated to the stage at which he was proceeded ex-parte, which nowhere lays down that the defendant shall be debarred to take part in the subsequent proceedings if either he is not able to show good cause for the revival of the earlier proceedings or he does not feel a necessity to undo whatever is already done in the case, and simply stands in need of contesting the suit from the later stage. Since the provision of Order IX of CPC have been made applicable to adjourned hearing under Order XVII, therefore, there may be cases in which setting aside of the earlier proceedings may not be felt necessary, for instance, if the defendant has already filed written statement and list of witnesses and is unable to put in appearance on subsequent date, his mere joining the proceedings can serve the purpose to contest the suit by cross-examining the witnesses of the opposite side and producing his own evidence. Even if he has not filed written statement, he may be in a position to secure the dismissal of the suit by faising an objections, orally to be jurisdiction of the Court, limitation etc. In the absence of any clear proceedings, in the Code of Civil Procedure prohibiting the appearance and taking part in the proceedings by the defendant proceeded against ex-parte, there can be no legal bar to allow him to defend his right. It is the right of every defendant and also the principle of natural justice, to be given a chance of hearing before any order is passed against his interest. The rules of, procedure are meant to advance justice as to preserve right of litigations and they are not to be interpreted in a way as to hamper the administration of justice. Moreover, it has also been observed that as such, in the absence of any clear prohibition in the scheme of civil procedure denying the defendant of his right to take part at any stage of the proceedings after the order of ex-parte proceedings, he can appear and defend the suit if somehow his application for setting aside the ex-parte proceedings does not succeeded on account of the failure to show good cause for his previous non-appearance. The defendant who had been proceeded against ex-parte can take part in the subsequent proceedings as of right. However, in this case despite a fact that till when the petitioners had made application for setting aside ex-parte order, no evidence of respondent was recorded and by not allowing the petitioners to lead evidence, the learned Civil Judge committed illegality and the learned Additional District Judge in a mechanical manner dismissed appeal of petitioners while application for setting aside ex-parte order was also dismissed illegally on ground and observation that the petitioners had never assailed the ex-parte order and the order of dismissing application for setting aside ex-parte order before higher forum, therefore, both orders had attained finality in the eye of law, however, the learned Additional District Judge committed illegality and in the circumstances when the Courts below have committed illegality while passing impugned judgments and decrees, same are not sustainable in the eye of law especially when precious rights of petitioners are involved in lis, as they would have been provided with ample opportunities to defend case.
10. In view of discussion made above, this civil revision is accepted and the impugned judgments and decrees of both the Courts below are hereby set aside and application for setting aside ex- parte order is also accepted and matter is referred back to the learned Civil Judge, Lahore with direction that suit of respondent shall deemed to be pending before him and learned Civil Judge, Lahore shall decide the case on merits after hearing the parties. Parties are directed to appear before learned District Judge, Lahore on 26.4.2017 who shall entrust the case to the Court of competent jurisdiction and the suit shall be disposed of within three months after receipt of copy of this Judgment.