Ch. Muhammad Masood Jahangir J. Although the complete facts of the case in hand are detailed in impugned concurrent orders, however , to streamline in short, on 24.04.2001, respondents No.1 & 2 instituted declaratory suit against the lady defendants/petitioners along with others to challenge oral exchange mutation No.207 dated 19.06.1993 as well as subsequent orders passed by Member , BoR and Deputy Commissioner concerned, which was hotly contested by the petitioners, the beneficiaries of impugned mutation & orders referred hereinabove.
Consequent upon divergent pleadings of the parties, issues were settled on 16.06.2004 and the plaintif fs were invited to examine evidence, but on two occasions, it was not produced. Subsequently the Judicial Officer seized of the lis was transferred without any substitute, therefore, u/s.24-A of the Code, 1908, the learned District Judge, T.T.Singh transferred the suit to some other Court on administrative side. Again on different occasions the evidence of the plaintif fs was not available, however , the matter was fixed for 30.11.2005 when none appeared on behalf of the petitioners and consequently they were proceeded against ex parte , but before the following date of hearing i.e. 25.01.2006, the Judicial Officer once again transferred without any substitute. The learned District Judge another time on 21.06.2006 transferred the suit on administrative side in absentia of petitioners to Mr. Qamar-uz-Zaman, Civil Judge without fixing any specific date. The Transferee Court after receipt of file although under the law issued notice pervi to procure attendance of petitioners/defendants, but could not be served. The Court all of a sudden halted the said exercise in between and on being apprised that petitioners/lady-defendants had already been proceeded against ex parte , directed the plaintif fs to adduce their evidence, which was led, thus suit ex parte decreed on 23.01.2008. The petitioners being offended within next thirty days tabled application u/o. IX r. 13 of the Code, 1908 for its setting aside, but having been dismissed by both the Courts below , this Civil Revision was preferred.
2. Arguments heard and record perused.
3. While keeping in mind the fact and history of the case narrated in para-1 ante, the sole moot point would be, whether upon transfer of lis on administrative side u/s.24-A of the Code ibid, the parties were required to be informed through some notices and definitely in terms of para.6, Chapter XIII, Volume I, High Court Rules & Orders, which is reproduced hereunder:- "6. Records to be sent immediately to the Court to which case is transferred.-- When a case is transferred by administrative order from one Court to another , the Presiding Officer of the Court from which it has been transferred shall be responsible for informing the parties regarding the transfer , and of the date on which they should appear before the Court to which the case has been transferred. The District Judge passing the order of transfer shall see that the records are sent to the Court concerned and parties informed of the date fixed with the least possible delay . When a case is transferred by judicial order the Court passing the order should fix a date on which the parties should attend the Court to which the case is transferred. " the answer is in affirmative. Thus, it was not only usual, but mandatory to issue notice to the parties to impart them information that the case had been transferred from one Court to another and in absence of such notice, the defaulting party could well plead lack of knowledge that in which Court he had to appear .
4. The emphasis of learned counsel for the respondents that petitioners/defendan ts had already been proceeded against ex parte, therefore, it was not necessary to issue them fresh notices by the Transferee Court, has already been negated by this Court in the judgment reported as Nemat Ali and others vs. Mst. Bakhtawar and others (1995 MLD 484 ), wherein it was concluded as under:- "Further , the suit was twice transferred administratively on 12.05.1982 and 18.11.1982 to different Courts without an intimation to the petitioners. It was imperative to issue notices to the parties informing them that the case had been transferred from one Court to another . An absence of such a notice, a party could well plead that he did not know in what Court had to appear . The fact that a notice was required for the act of transfer of a suit under an administrative order was supported by cases reported in AIR 1918 Patna 341, AIR 1923 Lahore 444, PLD 1950 Lahore 82, PLD 1962 (W.P.) Lahore 1041, PLD 1975 Lahore 879, PLD 1985 Lahore 326. Last decision was given by me. Even an order for ex parte proceedings against a particular defendant did not deprive him of a right to receive notice on transfer of the suit by an administrative order . "
Thus, the impugned orders in the light of afore-noted para of the High Court Rules & Orders as well as judgment of this Court referred hereinabove are not sustainable.
5. The case diary maintained by the learned Trial Court was reflective of the fact that the petitioners/lady- defendants diligently pursued the case for years & years, who only on one occasion failed to appear , but the learned Trial Court in haste proceeded them against ex parte without realizing that the said ladies throughout had been assiduously following the suit proceedings, thus might have adjourned the case. In doing so, nothing terrible would have happened because valuable rights of the parties are involved herein and so far as possible law favours adjudication of cases on merit. From whatever angle the situation is tested, the impugned orders are not liable to be protected. Therefore, this Civil Revision is allowed, orders impugned herein are set aside and as a result thereof, the application for setting aside of ex parte proceedings as well as decree dated 30.11.2005 & 23.01.2008 respectively is accepted while reviving the suit of respondents No.1 & 2/plaintif fs before the learned Civil Court with direction to decide the same within next five months positively even by conducting proceedings on day to day basis, if need be. The parties will appear before the learned District Judge, T.T.Singh on 14.12.2020 for entrustment of suit file to some Court of competent jurisdiction for further proceedings.