CH. MUHAMMAD MASOOD JAHANGIR, J.---- Inessential detail apart, respondent/plaintif f on the basis of mere receipt dated 28.02.1971 scribed on plain paper instituted suit for its specific performance against the petitioners before the learned Trial Court about thirty seven years thereafter on 19.03.2008. The assertion of the respondent was that his father had purchased it from the predecessor of the petitioners and after making sale consideration the possession changed hands. It was matter of record that petitioners/defendants were not served through ordinary modes, consequently process published via substituted service. For non-appearance, defendants/petitioners were proceeded against ex parte on 24.06.2008, followed by ex parte decree of 07.02.2009. Having its notice, when proceedings for its satisfaction were under way, the petitioners though for some advice tried to resist the ex parte decree before learned Executing Court, but having failed there, they tabled application for setting aside of ex parte proceedings as well as decree. This effort fell to ground on sole score of limitation, thus this civil revision was made.
2. This matter repeatedly called and each time, Mr. Sharjeel Ejaz and associate Advs. for petitioners appeared, but none turned up on behalf of respondent in spite of that name of his learned counsel is duly reflected in the cause list, who is thus proceeded against ex parte .
3. Arguments on behalf of petitioners heard, record perused.
4. On factual side, it emerged that on the basis of receipt merely scribed on plain paper , the petitioners were sued after about four decades of its alleged execution. Although, process issued, but nothing was brought on file to adjudge that defendants were avoiding service and without recording statement of Process Server to this effect, their substituted service through issuance of proclamation was definitely not warran ted. The Courts are obliged to return Amanats to original claimants and there is no assumption that a litigant can be trapped through technicalities. Neither the property was purchased by respondent/plaintif f himself nor his ascendants from petitioners/defendants, rather as per contents of plaint the forefathers of the parties had entered into alleged contract. The question of limitation in institution of suit after such a delay besides locus standi of the successor in this regard being legal proposition was necessarily to be considered, but the learned Trial Court without taking any pain ex parte decreed the suit merely being influenced that there was no rebuttal to the stance of the respondent.
5. It is well established by now that even while dealing with application for setting aside of decree, merits of the original lis can be C considered. It was not a simple case, rather many questions appearing on factual as well as legal aspects required to be resolved by the Court and without adverting thereto or probe ex parte decree was passed, the vires whereof can be looked into even if the same was assailed after some delay caused due to bona fide agitation before some other forum. Once disputed question of law and fact agitated in such like application, the Trial Court was bound to equip the parties with opportunity to lead evidence in pro and contra . The summary rejection of application was against the principle of natural justice as well as concept of fair trial guaranteed by Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. See "Hassan Din and another v. Jalal Din and 2 others " (1992 CLC 33) and "Muhammad Idrees v . Muhammad Kashif' (2008 MLD 1448 ).
6. For the reasons recorded hereinabove, this petition having merit is allowed, orders impugned herein are set aside and as a result thereof, application tabled under afore-noted provision of law for setting aside of ex parte proceedings and decrees dated 24.06.2008 and 07.02.2009 respectively will deem to be pending before learned Civil Court, who will re-decide it after settlement of issues as well as evaluation of evidence to be led by respective parties. The petitioners are directed to appear before learned Civil Judge-I, Pattoki on 19.10.2020, who after procuring service of respondent/plaintif f will proceed further in accordance with law .