AMIN-UD-DIN KHAN, J.---Through this Civil Revision, petitioners who are successors of defendant- judgment debtor have challenged the judgment dated 04.07.20171 passed by a learned Additional District Judge, Lahore whereby the appeal filed by the petitioner was dismissed and the judgment/order dated 03.06.2015 handed down by a learned Civil Judge, Lahore whereby an application under Order IX, Rule 13 of the C.P.C. for setting aside the ex parte proceedings and judgment and decree was dismissed.
2. I have heard learned counsel for the parties at length. Some of the facts of the case as well as report of local commission have been referred to but after hearing learned counsel for the parties, I. am of the view that the facts-in-issue between the parties need not to be noted and discussed here so that it may not prejudice the case of any of the parties.
3. As per case pleaded by the petitioners, their father appeared in the suit for declaration and recovery of possession filed by the plaintiff-respondent. In the suit, it walk pleaded that defendant- predecessor of petitioners was raising construction over the suit plot measuring 3-marlas.
Written statement was filed contesting the suit but thereafter, defendant disappeared.
The grounds mentioned in the application under Order IX, Rule 13 of the C.P.C. are that defendant- predecessor of petitioners became seriously ill and was unable to appear before the Court in order to defend the suit and subsequently, he passed away. It was contended in the application that filing of the suit and its pendency was not in the knowledge of petitioners who are his daughters one of them was minor at that time and their mother who subsequently passed away.
4. Learned counsel for the petitioners states that learned trial Court dismissed the application for setting aside the ex-parte proceedings and judgment and decree without framing issues and giving opportunity to the petitioners to substantiate their pleadings in the application. Submits that learned first appellate Court noted in its judgment that "the plea of appellants is absolutely baseless that their predecessor was not served properly rather he himself avoided his appearance from the court and learned trial Court after adopting proper procedure decided the suit upon merits".
Argues that it was never the ease of petitioners (appellants in the appeal preferred before learned Additional District Judge, Lahore) that their father never appeared rather he was served, appeared before the Court, filed written statement but subsequently fell seriously ill and could not appear before the Court later on. 'States that the findings recorded by learned first appellate Court are absolutely against the record and the case pleaded by petitioners-appellants which shows non- application of judicious mind by the learned first appellate Court.
5. Learned counsel for the respondent has supported the conclusion drawn by both the learned Courts below and prayed for dismissal of this Civil Revision.
6. I have noticed that both the learned Courts below had not granted opportunity to the petitioners to substantiate their version pleaded in the application for setting aside the ex-parte proceedings as well as judgment and decree after framing issues or at, least affording an opportunity to submit medical certificates. Further, the application was A supported by the affidavit of applicants which was to be accepted by the Court. If the Court was of the view that the affidavit was not considerable, the applicants must have been afforded an opportunity to substantiate their case pleaded in the application. I am fortified by the law laid down in "National Bank of Pakistan v. The Additional District Judge, Lahore and 2 others" (PLD 1985 Lahore 327), "'Hassan Din and another v.
Jalal Din and others" (1991 CLC 33), "Sajjad Ahmad v. Canon How Thomas" (2007 CLC 1017(2)) and "Qazi Laeeq v. Najeebur Rehman and others" (2012 M LD 50).
7. In this view of the matter, while accepting this Civil Revision and setting aside the ex-parte proceedings initiated through order dated 15.06.2010, the ex-parte judgment and decree dated 20.04.2011 passed by learned Civil Judge 1St Class, Lahore as well as order of dismissal of application passed on 03.06.2015 by learned trial Court and order dated 04.07.2017 regarding dismissal of appeal are set aside. The suit titled "Irshad Hussain v. Syed Muzammal Hussain Shah" shall be deemed to B be pending before learned trial Court after submission of amended plaint and impleading the applicants as defendants in the suit. Learned trial Court shall proceed with the suit from the stage prior to 15.06.2010 when predecessor of petitioners was proceeded against ex- parte. Learned trial Court shall decide the, suit after complete trial in accordance with law.