' The facts relevant for the purpose of disposal of this petition seeking revision of the order of the learned Additional District Jude, Lahore, dated the 9th March, 1981 dismissing the petitioner's appeal against the order of the learned Civil Judge, Lahore, dated the 20th November, 1979 whereby the application of the petitioner under Order IX, rule 13 of the Code of Civil Procedure for setting aside the ex parte decree passed against him on the 14th July, 1977 was rejected may be stated as follows. On the 19th March, 1971 Mst. Irshad Begum. Respondent 1, instituted suit for getting declared the orders of the Settlement Authorities regarding transfer of a portion of khasra No, 2906 in dispute to Muhammad Sadiq, petitioner, to be void. The petitioner, who was impleaded as defendant 2 in the suit, alleges that respondent 1 gave his wrong address and managed to procure his service by affixation of a copy of the summons though no service had ever been effected upon him. He further alleges that she manoeuvred to produce' some fictitious person by the name of Muhammad Nasim Naz as lawyer on his behalf before the learned trial Court in order to mark his presence. He contends that he never instructed any lawyer much less Muhammad Nasim Naz to appear or plead on his behalf and that no memorandum of appearance, which Muhammad Nasim Naz had allegedly promised to place on the file, was available on the record. According to him respondent 1 practised fraud to secure ex parte decree against him. He further contends that when he received notice from the Settlement Authorities on the 13th june, 1978 he came to know of the passing of ex parte decree against him and soon thereafter, on the 20th June, 1978 moved application under Order IX, rule 13 of the Code of Civil Procedure for setting it aside. The learned trial Court without giving him an opportunity of substantiating his case by production of evidence rejected his application summarily on the 20th November, 1979. His appeal was dismissed by the learned Additional District Judge, Lahore, on the 9th March, 1981.
2. The learned counsel for the petitioner placed on the record list of the Advocates bearing the names of Muhammad Nasim enrolled since 1965, supplied by the Punjab Bar Council. The name of Muhammad Nasim Naz does not figure therein. Though the learned counsel for respondent 1 undertook to procure and file an affidavit of the Advocate by the name of Muhammad Nasim Naz, who, according to him, was practising at Rawalpindi, yet he did not fulfil his promise.
3. Section 141 of the Code of Civil Procedure lays down that th procedure provided in the Code in regard to suits is to be followed, as far as it can be made applicable, in all proceedings in any Court of civil. Jurisdiction. The averments in the petitioner's application for setting aside ex parte decree could have been proved only by production of evidenc by him. When respondent 1 denied the petitioner's allegations the resolution of controversial points demanded settlement of issues which could be determined by the evidence of the parties. The rejection of the application without adopting the proper procedure of striking issues and affording the parties opportunity to lead evidence thereon cannot be legally sustained. The petition per force has to be accepted. The impugned order of the learned trial Civil Judge rejecting the petitioner's application and of the learned Additional District Judge dismissing th appeal against that order are set aside and the case is remanded for fresh trial according to law. The records will be sent to the learned, District Judge, Lahore, who will entrust the petitioner's application for setting aside the ex parte decree for disposal to a Civil Judge who will decide it within three months by giving it priority over other cases.
The petitioner and respondent 1 have been directed to appear before the learned District Judge, Lahore, on the 8th June, 1982. The petitioner will get his costs from respondent 1.