Raza Ali Khan, J. This appeal, by leave of the Court, has been filed against the judgment of the High Court of Azad Jammu and Kashmir, dated 19.09.2019, whereby, the appeal filed by the appellants, herein, has been dismissed.
2. The brief facts of the case are that the Collector Land Acquisition acquired the land of the respondents, herein, situated, in the estate of Dhani Shandara, Tehsil and District Hattian Bala, for the construction of refugee camp, Niali, vide Award No. 40/10, dated 18.01.2011. The compensation of the said land was determined as Rs. 2,80,000/- per kanal alongwith 15% compulsory acquisition charges. Feeling aggrieved from the said award the land-owners filed a reference before the learned Reference Judge Hattian Bala, on 26.02.2011, stating therein, that the price of the land has not been assessed according to the market value prevailing at the time of acquisition. On filing of the reference, the appellants, herein, were summoned who appeared in response of summoning process but later on absented themselves, therefore, the ex-parte proceedings were initiated against them. The learned Reference Judge while concluding the case enhanced the amount of compensation of Rs. 280,000/- to Rs. 818,181/-per kanal, alongwith 15% compulsory acquisition charges, vide its ex-parte judgment and decree dated 18.01.2011. The said decree attained finality and when the executing proceedings of the said decree were initiated, the appellants, herein, moved an application for cancellation of the said decree on 19.09.2015. The learned Reference Judge rejected the said application on 26.08.2017. This order was challenged by the appellants, herein, before the High Court by filing an appeal, which has been dismissed through the impugned judgment dated 19.09.2019.
3. The case was fixed for argument on 07.02.2022, when both the learned counsel for the parties requested for filing written arguments which was accepted and they were ordered to file the same within three days, which have been filed.
4. Raja Mazhar Waheed Khan, the learned Additional Advocate-General representing the appellants stated that the impugned judgment of the High Court is based on misconception of law and the facts of the case, which is not sustainable in the eye of law. It was stated that the respondents obtained the ex-parte decree secretly by playing fraud while making the defective service; as soon as the appellants came to know about the said decree during the execution proceeding, they immediately filed the application under Section 12(2) of C.P.C for setting aside the said decree. It was further stated in the,, written arguments that in the application the appellants took a specific plea that they were not in knowledge about the said decree, the same has been obtained secretary while making the defective service but the learned trial Court failed to consider the contents of the application and illegally rejected the same on the point of limitation. It was further-stated that standing counsel for the official respondents was bound to intimate the department in time about ex-parte proceedings but he failed to do so and the appellants were unaware about the ex-parte proceedings. It was further stated that it was enjoined upon the learned Reference as well as High Court to decide the case on merits after considering the facts and evidence on record but both the Courts below failed to act in accordance with law, hence, the judgments of both the Courts below are liable to be set-aside.
5. Conversely, Mr. Shahzad Shafi Awan, the learned Advocate representing the respondents also filed written statement, wherein, it was stated that the judgments of the Courts below are in accordance with law calling for no interference by this Court and the appellants have no locus- standi to file the instant appeal. It was further stated that the version taken by the appellants is misconceived because the record of the case clearly transpires that the summons were served upon the appellants and in response of the notices they also appeared before the trial Court and participated in the proceedings from 12.04.2011 to 19.09.2013. It was further stated that the authority has not paid a single penny of compensation to the respondents and continuously filing frivolous cases before the Courts for lingering on the matter. It was further stated that the application for setting-aside the judgment and decree dated 19.09.2015; had been filed by the appellants after the lapse of one year and five month which was hopelessly time barred, therefore, this appeal may be dismissed.
6. We have considered the written arguments of the learned counsel for the parties and gone through the record of the case. The perusal of the record shows that an ex-parte decree was passed against the appellants, herein, by the learned Reference Judge Jhelum Valley on 18.01.2011.
During execution proceedings, the respondents, herein, filed an application for setting aside the ex- parte judgment and decree dated 18.01.2011, which was ultimately, rejected vide order dated 26.08.2017. The most stressed point of the learned counsel for the appellants was that neither they were summoned properly in the light of Order IX, Rule 6 of Civil Procedure Code, 1908, nor they got knowledge of the ex-parte decree passed by the learned Reference Judge, therefore, the ex-parte judgment and decree is liable to be set-aside. While meeting this point, we have also gone through Order IX, Rule 6 of Civil Procedure Code, 1908, which is reproduced hereunder for better appreciation: "6. Procedure when only plaintiff appears.--(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then-- When summons duly served.--(a) if it is proved that the summons was duly served, the Court may proceed ex-parte and pass decree without recording evidence.
When summons not duly served.--(b) if it is not proved that summons was duly served, the Court shall direct a second summons to be issued and served on the defendant; When summons served, but no in due time.--(c) if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.
The above reproduced statutory provision contemplates three situations (i) when summons duly served; (ii) when summon not duly served (iii) when summons served, but not in due time. In the first situation, when it is proved that the summons was duly served the Court may make an order that the suit be heard ex-parte. The provision casts an obligation on the Court and simultaneously invokes a call to the conscience of the Court to fell satisfied in the sense of being 'proved' that the summons was duly served and when alone Court is conferred with a discretion to make an order that the suit be heard ex-parte. The basic purpose and objective of summons is to inform defendant of proceedings so that he can appear before the Court and be heard or any defence that he may wish to put up; at the same time, defendant cannot be allowed to frustrate or delay a. legitimate claim by staying away from the Court proceedings and it is for such reason, law permits the Court to decree a suit ex-parte. Once it is shown that the summons was 'duly served' an ex- parte decree can follow and then execution can be levied against defendant, who then becomes judgment debtor.
7. In the case in hand, the question of proper service as raised by the learned counsel for the appellant does not arise as from the record it appears that in response to the notice issued by the trial Court, the appellants appeared before the Court, they participated in the proceedings from 12.04.2011 to 10.09.2013, hence, they were well. aware of the entire proceedings of the reference. It is also apparent from the record that, during their appearance before the trial Court they were proceeded ex-parte twice land the ex-parte orders were eventually, dropped on their applications vide orders dated 15.03.2013 and 19.09.2015, respectively. In this state of affairs, when they participated in the proceedings before the trial Court for more than two years, now they cannot turn round and file application for setting-aside the judgment and decree on the ground of non- service of notice. It is settled principle of law that the law helps the vigilant and not those who remain indolent in protection of their rights by sleeping over the infringement of same or safeguarding them within Court of law. This case is classic example of the negligence of the Government functionaries due to which public funds would have to be spent on payment of enhanced compensation without enhancing of legal remedies on merits. However, it is pertinent to mention that the Courts are bound by law and law does not require the Courts in administration of justice to make distinction between an ordinary litigant and the Government functionaries. No special, treatment can be given. To augment our above view, resort may be made to the judgment of this Court in the case titled Department of Agriculture and another vs. Raees Khan and others [2015 SCR 1501], wherein it has been held that: "It may be observed that law is equal for everybody. The special treatment cannot be extended to the Government functionaries.'
In the light of above, the impugned judgment has rightly been passed by the High Court which does not suffer from any illegality. This appeal, having no backing, is hereby dismissed. No order as to cost.