The petitioner, through the instant civil revision, challenged the validity and legality of judgments/orders dated 08.01.2013 and 24.05.2014 passed by the Courts below whereby, the application filed by petitioner for setting aside ex-parte proceedings as well as ex-parte judgment/decree was dismissed concurrently.
2. Facts in brevity are that Respondents No 1 to 8 instituted suit for declaration and permanent injunction titled as "Rana Sohail Anjum etc. versus Province of Punjab etc." by impleading petitioner as Defendant No. 3 on 07.07.2006. The Defendants No. 1 & 2 filed contesting written statement, however, petitioner/Defendant No. 3 proceeded ex-parte after the citation in the newspaper. The learned trial Court concluded the trial and to decreed the suit vide judgment & decree dated 04.09.2008. When the petitioner/Defendant No. 3 came to know about this ex-parte proceedings and ex-parte judgment and decree he moved an application on 24.01.2009 under Order IX Rule 13, C.P.C. for setting aside ex-parte proceedings as well as ex-parte judgment and decree dated 04.09.2008. The Respondents No. 1 to 8/plaintiffs filed its contesting written reply. The learned trial Court framed necessary issues in the light of divergent stances of the parties and recorded evidence of the parties pro & contra, dismissed the application vide judgment/order dated 08.01.2013. Feeling aggrieved, the petitioner preferred an appeal which was dismissed by the learned appellate Court vide judgment/order dated 24.05.2014. Being dissatisfied, he filed instant civil revision.
3. I have heard the learned counsel for the parties and perused the record with their able assistance.
4. From the perusal of order sheet, it appears that after institution and registration of the suit, the learned trial Court summoned the defendants while issuing direction to issue notices in the names of defendants through registered envelope with A.D vide order dated 07.07.2006 and adjourned the proceedings for 13.07.2006. There is no evidence available on the record that respondent/plaintiff had deposited expenses of registered envelope & A.D, however, on the margin of order-sheet the ministerial staff reported that summons was not received back and again reported that service upon Defendant No. 3 was not affected due to lack of time. Vide order dated 13.07.2006 Defendant No. 3 was again summoned through registered envelope A.D for 21.07.2006. The office report available on the margin of the order sheet reflects that notice in the name of petitioner/defendant was not received back from tehsil Ferozwala. On 21.07.2006, petitioner/ Defendant No. 3 was again summoned through registered envelope A.D for 07.09.2006. Office reported of his non-service and the learned trial Court keeping 'in view non-service of summons upon Defendant No. 3 directed to summon the Defendant No. 3 through citation in the newspaper "Daily Aftab". On the margin of the order-sheet ministerial staff reported that expenses were not deposited and also reported that the newspaper is attached. The learned trial Court keeping in view proclamation in the newspaper initiated ex-parte proceedings against the Petitioner/Defendant No. 3 and thereafter concluded the trial by recording evidence of respondents and decreed the suit against Defendants No. 1 & 2 and Defendant No. 3 ex-parte vide judgment & decree dated 04.09.2008. Copies of notices issued in the names of defendants are available on record as Exh.R.8 and from perusal, it appears that Petitioner/Defendant No. 3 was summoned in the suit by issuing notices instead of summons. The Process Server reported on the back of notice issued for 13.07.2006 that date of the case is so close that service cannot take place and on the notice issued for 07.09.2006 it was reported that Muhammad Hussain (Petitioner/ Defendant No. 3) has gone to Lahore for his important work, therefore, the order could not be complied with. The learned trial Court without considering the reports of the process server observed that the service of Defendant No. 3 is not possible through ordinary mode and directed that he be summoned through citation in the newspaper. Although, the respondents/plaintiffs did not' deposit the process fee for citation in the newspaper but citation in the newspaper was published and placed on the record. The learned trial Court, keeping in view the citation in the newspaper initiated ex-parte proceedings against the petitioner/ Defendant No. 3 on 19.09.2006. Perusal of said citation it appears that name of petitioner/Defendant No. 3 was not correctly reflected as his name was mentioned as Muhammad Hanif instead of Muhammad Husain and postal certificate is also not available on the file about posting of the newspaper at the address of petitioner/ Defendant No. 3.
5. In order to appreciate the arguments addressed by the learned counsel for the parties and to determine the questions involved in this case, it is necessary to see the relevant provisions with regard to initiation of ex-parte proceedings and passing of an ex-parte decree. The Order IX rule 06, C.P.C. define the situation, when and how ex-parte proceedings are initiated against the defendants, which reads as under: Order IX Rule 06 of C.P.C.
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
(a) When summons duly served, if it is proved that the summons was duly served, the Court may proceed ex-parte 1 [and pass decree without recording evidenced.
(b) When summons not duly served. if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant;
(c) When summons served, but not in due time. 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.
(2) Where it is owing to the plaintiff's default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.
6. The remedy is provided in Order IX Rule 07 C.P.C. for setting aside of an ex-parte proceedings, which reads as under: Order: IX Rule: 7.
Procedure where defendant appears on day of adjourned hearing and assigns good cause for pervious non-appearance.-- Where the Court has adjourned the hearing of the suit ex-parte and the defendant at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.
7. If the defendant fails to get set-aside the ex-parte proceedings then the Court has power to pass an ex-parte decree and the remedy for setting aside of the said decree is provided under Order TX Rule 13 C.P.C., which reads as under: Order IX Rule: 13 Setting aside decree against defendant.---
(1) In any case in which a decree is passed ex-parte against a defendant he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented, by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such nature that it cannot be set aside as against such defendant only, it may be set aside as against all or any of the other defendants also: Provided further that no decree passed ex-parte shall be set aside merely on the ground of any irregularly in the service of summons, if the Court is satisfied, for reason to be recorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim (ii) Rule 13 shall be re-numbered as sub-rule (1) of that rule and, alter sub-rule
(1) re-numbered as aforementioned, the following new sub-rule shall be added namely:--
(2) The provisions of Section 5 of the Limitation Act, 1908 (1X of 1908), shall apply to application under sub-rule (1).
8. From perusal of said provisions it appears that initiation of ex-parte proceedings which converted into ex-parte decree came into existence when it was proved that the summons was duly served upon the defendant. A defendant seeking setting aside of ex-parte decree has to satisfy the Court that:-
(i) summons was not duly served on him; or
(ii) that he was prevented by any sufficient cause from appearing when the suit was called on for hearing.
9. Either of the aforesaid two conditions is to be fulfilled to set aside the ex-parte decree. It is not essential that both the conditions should be satisfied simultaneously as the satisfaction of either of the conditions was sufficient in the eye of law, to recall the ex-parte decree. In the present case, the ground alleged by the defendant to set aside the ex-parte decree rested on the former condition, vis. that the summons was not duly served upon the defendant. The rule of procedure lay emphasis on due service of summons on a party so that such party was not deprived of its valuable right without providing an opportunity of defense.
10. Before taking up the point of due service of summons on the defendant, it is relevant to state as to what is the due service of summons on a party. It is necessary to examine the relevant provisions relating to service of summons which are provided in order V of C.P.C. Order V rule 01 define the situation that after institution of the suit summons may be issued to the defendant to appear and answer the claim of the plaintiff as he pleaded in his plaint, which reads as under:- Order V Rule 01, C.P.C. Summons.
(1) When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified: Provided that no such summons shall be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiff "s
(2) A defendant to whom a summons has been issued under sub rule (1) may appear
(a) in person, or
(b) by a pleader duly instructed and able to answer all material questions relating to-the suit, or
(c) by a pleader accompanied by some person able to answer all such questions.
(3) Every such summons shall be signed by the Judge or such officer as he appoints, and shall be sealed with the seal of the Court.
11. The word "summon" as mentioned in the rule is a type of form which is used for calling the defendant and its specimen is given at appendix-B "No. 1 and No. 2". For guidance reproduced as under: Appendix-B No. 1 & 2.
NO. 1 SUMMONS FOR DISPOSAL OF SUIT.
(O. 5, R. 1, 5) (Title) To (Name, description and place of residence)
WHEREAS; has instituted a suit against you for you are hereby summoned to appear in this Court at person or by a pleader duly instructed, and able to answer all material questions relating to the suit, or who shall be accompanied by some person able to answer all such questions, on the day of at o'clock in the noon, to answer the claim: and as the day fixed for your appearance is appointed for the final, disposal of the suit, you must be prepared to produce on that day all the witnesses upon whose evidence and all the documents upon which you intend to rely in support of your defence. Take notice that, in default of your appearance on the day before mentioned the suit will be heard and determined in your absence.
GIVEN under my hand and the seal of the Court, this______ day of______ Judge.
NOTICE.1, Should you apprehend your witnesses will not attend of their own accord, you can have a summons from this Court to compel the attendance of any witness, and the production of any document that you have a right to call upon the witness to produce, on applying to the Court and on depositing the necessary expenses.
2. If you admit the claim, you should pay the money into Court together with the costs of the suit, to avoid execution of the decree, which may be against your person or property, or both.
NO. 2 SUMMONS FOR SETTLEMENT OF ISSUES: (O. 5, Rr. 1, 5) (Title). To [Name, description and place of residence] WHEREAS has instituted a suit against you for you are hereby summoned to appear in this Court in person, or by a pleader duly instructed, and able to answer all material questions relating to the suit, or who shall be accompanied by some person able to answer all such questions, on the day of_____ at____ o' clock in the noon, to answer the claim; and you are directed to produce on that day all the documents upon which you intend to rely in support of your defence 1 [and to file on or before that date your written statement]. Take notice that, in, default of your appearance on the day before mentioned, the suit will be heard and determined in your absence.
GIVEN under my hand and the seal of the Court, this_____ day of______ Judge.
NOTICE.1. Should you apprehend your witnesses will not attend of their own accord, you can have a summons from this Court to compel the attendance of any witness, and the production of any document that you have a right to call upon the witness to produce, on applying to the Court and on depositing the necessary expenses.
2. If you admit the claim, you should pay the money into Court together with the costs of the suit, to avoid execution of the decree, which may be against your person or property, or both.
12. Order V rule 9 to Rule 20 deal with service of summons, which for ready reference are reproduced as under:- Rule 9. Delivery or transmission of summons for service. (1) Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent to the proper officer to be served by him or one of his subordinates.
(2) The proper officer may be an officer of a Court other than that in which the suit is instituted, and, where he is such an officer, the summons may be sent to him by post or in such other manner as the Court may direct.
'(3) Unless the Court otherwise directs, the proper officer or an officer authorized by him in this behalf shall cause the service of summons and return it to the Court within fifteen days of issue of summons.
Rule 10. Mode of Service: Service of the summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf, and sealed with the seal of the Court.
High Court Amendment: Lahore: Add proviso to r. 10:--- "Provided that in any case, if the plaintiff so wishes, the Court may, serve the summons in the first instance by registered post (acknowledge due), instead of in the mode of service laid down in this rule."
Rule 10-A. Service by post.--(1) Simultaneously with the issue of summons under rule 9, there shall be sent unless otherwise ordered by the Court, to the defendant, by registered post, acknowledgement due, another copy of the summons' signed and sealed in the manner provided in Rule 10.
(2) An acknowledgement purporting to be signed by the defendant of the receipt of the registered communication or an endorsement by a postal employee that the defendant refused to take delivery of the same shall be deemed by the Court issuing the summons to be prima facie proof of service by summons.
Rule 12: Service to be on defendant in person when practicable or on his agent. Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient.
Rule 13: Service on agent by whom defendant carries on business.
(1) In a suit relating to any business or work against a person who does not reside within the local limits of the jurisdiction of the Court from which the summons is issued, service on any manager or agent, who, at the time of service, personally carries on such business or work for such person within such limits, shall be deemed good service.
(2) For the purpose of this rule the master of a ship shall be deemed to be the agent of the owner or charterer.
Rule 15: Where service may be on male member of defendant's family. Where in any suit the defendant cannot be found and has no agent empowered to accept service of the summons on his behalf, service may be made on any adult male member of the family of the defendant who is residing with him.
Rule 16: Person served to sign acknowledgment. Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement, of service endorsed on the original summons.
Rule 17: Procedure when defendant refused to accept service, or cannot be found.---Where the defendant or his agent or such other person as aforesaid refused to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.
Rule .18: Endorsement of time and manner of service The serving officer shall, in all cases in which the summons has been served under Rule 16, endorse or annex or cause to be endorsed or annexed, on or to the original summons, a return' stating the time when and the manner in which the summons was served, and the name and the address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons.
Rule 19: Examination of serving officer: Where a summon is returned under Rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings and may make such further inquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit.
Rule 20:, Substituted service.--(1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order for service of summons by-
(a) affixing a copy of the summons at some conspicuous part: of the hose, if any, in which the defendant is known to have last resided or carried on business or personally worked for gain; or
(b) any electronic device of communication which may include telegram, telephone, phonogram, telex, fax. radio and television' or
(c) urgent mail service or public courier service' or
(d) beat of drum in the locality where the defendant reside; or
(e) publication in press; or
(f) any other manner or mode as it may think fit; Provided that the Court may order the use of all or any of the aforesaid manners and modes of service simultaneously.
Effect of substituted service.--(2) Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.
Where service substituted time for appearance to be fixed.--(3) where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require.
13. The mode of effecting service of summons has been evolved within the framework of the provisions of Order V, C.P.C. Rules 10, 12, 13 and 15 are relevant rules to the mode of service. Rule 10 precisely provides that service of the summons shall be made by delivering or tendering a copy thereof to the defendant. When summons is served personally on the defendant by delivering or tendering its copy to him, ordinarily, it is deemed substantial compliance with the provisions relating to due service of the summons. Rules 12 and 13 provide a scheme of service through an agent of the defendant. Rules 15 next, lays down that where the defendant cannot be found and he has no agent to accept service, in that position, service may be made on any adult male member of his family who resided with him.
14. A perusal of the aforementioned provisions of the Code of Civil Procedure clearly shows that a summon is ordinarily to be served on the defendant personally. It can also be served through a male member of the family, if the said member is residing with the defendant and the defendant cannot be found nor is there any agent empowered to accept service on his behalf. It is further established as per the aforementioned rules that in a case where the serving officer delivers or tenders a copy of the summons to the defendant personally or to an agent or other person on his behalf, an acknowledgment in writing is to be obtained on the original summons. While proceedings under Rule 17, the Process Server is bound to indicate in his report that the defendant or his agent refused to sign the acknowledgment and he cannot find the defendant or his agent and then he has affixed a copy of the summons on the conspicuous part of the house where the defendant resides, the circumstances under which he has done it and the name and the address of the persons who identified the house in whose presence the copy was so affixed along with time.
As per Rule 19 when a summon is returned under Rule 17, the Court is to examine the Serving Officer on oath touching his proceedings and after holding a further inquiry, if necessary, is to pass an order as to whether summons has been duly served or is to direct fresh service. While proceeding under Rule 20 before passing of an order of substituted service, the Court is bound to record his satisfaction to the effect that there is reason to believe that the defendant is keeping out of the way to avoid service and thereafter the Court is to order the service of summons through substituted modes in terms of Rule 20.
15. A perusal of Rule 20 would show that after the Court satisfied itself that it is a case for substituted service, it shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house. This requirement has not been shown to have been complied with. It is further required that a copy was also to be affixed upon some conspicuous part of the house in which the defendant is known to have resided or carried on business, or in such other manner as the Court thinks fit. Substituted service has the same effect as personal service. In the instant case, petitioner/Defendant No. 3 has not been served properly and the substituted service is defective in the eye of law. Although, 0. V R. 20, C.P.C. empower the trial Court to effect the service of the defendant through substitute means but needless to emphasize that service through publication in the newspaper should not be resorted to unless the Court is satisfied that the defendant has been properly served and he is avoiding service for reasons best known to him.
Admittedly the petitioner/Defendant No. 3 is an illiterate rustic villager having no access to the newspaper. There is absolutely nothing on the file to demonstrate that he had the knowledge of proceedings pending against him but he intentionally failed to appear. Order of trial Court dated 19.09.2006 did not demonstrate that the trial Court made its satisfaction that Defendant No. 3 had been avoiding his service. The provisions of Order V, rules 17, 19 and 20, C.P.C. have been seriously violated in this case and the failure to comply with any of the requirements thereof nullifies the whole proceedings.
16. The trial Court based on this report which is not verified on oath by the process server instead of directing the issuance of fresh summons to the defendant for effecting personal service upon him, without recording the statement of the Process Server and without holding any inquiry, directed service of the petitioner through citation instead of affixture on the residential house of the petitioner. The citation has also been made in daily "Aftab" which is seldom heard of and appears to be a local newspaper. Although in cases of verified reports of refusal of acceptance of service which is duly made strictly in accordance with provisions of Order V Rule 17, the Court may not hold an inquiry and straightway hold that either the service is sufficient or another mode of service should be adopted but in those cases where the report is not attested by the witnesses who allegedly identified the residential place of the defendant and the act of his refusal to accept service by the witnesses, it is imperative that the trial Court should have been more conscious and careful and should at least have recorded the statement of the Process Server on oath and after holding a proper inquiry should have decided as to in what manner the service of the defendant should be effected particularly when it was contested the suit and had been restored ex-parte and the dispute related to the title of the property. Under circumstances of this case, therefore, it was not a fit case where the trial Court could straight away, on the basis of the report submitted by the Process Server which has been referred to above could have directed the service of the defendant through citation in a newspaper which is not even a daily of a national repute. It stands established, therefore, that the trial Court exercised his jurisdiction illegally and with a material irregularity in directing the service of Defendant No. 3 through citation. It is an established principle of law that law favours adjudication on merits and technical knock-out is to be discouraged. In view of the circumstances of the case particularly when provisions of Order V Rule 17 & 19 were also not complied with, the trial Court could not have resorted to substituted service on the basis of a sketchy, erroneous and illegal report submitted by the Process Server. Resultantly, I hold that the petitioner was not served lawfully in this case and as such could not have been proceeded against ex-parte nor an ex-parte decree could have been passed against him. The decree passed against him, therefore, being nullity in the eyes of law could have been challenged by the petitioner on acquiring knowledge thereof. It stands established that on coming to know the passing of an ex- parte decree against him, the petitioner filed an application seeking setting aside the decree.
17. The learned counsel for the respondents has referred to the second proviso to Order IX Rule 13(1) which provides that no decree passed ex-parte shall be set aside merely on the ground of any irregularity in service of summons, if the Court is satisfied for reasons to be recorded that the defendant had the knowledge of the date of hearing in sufficient time to appear on that date and answer the claim.
The plain reading of the above provision would show that the decree would not be set aside if there was any irregularity in service and also that Court has to record the reasons for its satisfaction that the defendant had the knowledge of the date of hearing. The learned counsel for the respondents could not point out to establish that the petitioner/Defendant No. 3 had the knowledge of the date of hearing. The learned trial Court also failed to record any such reason that the petitioner/Defendant No. 3 had the knowledge of the date of hearing.
18. The learned counsel for the respondents argued that the application for setting aside of the ex- parte judgment & decree was time-barred as the period of limitation provided in article 164 of the Limitation Act, 1908, is 30 days, whereas, the petitioner/Defendant No. 3 filed the application for setting aside of an ex-parte decree dated 04.09.2008 on 24.01.2009 which was filed after 140 days of the ex-parte judgment & decree.
19. In order to appreciate his contention, it is appropriate to see article 164 of the Limitation Act, 1908, which is reproduced as under: LIMITATION ACT: Article 164)By a defendant for an order to set aside a decree passed ex- parte.Thirty days.The date of the decree or where the summons was not duly served, when the applicant has knowledge of the decree.
20. As per Article 164 of the Limitation Act, the period of limitation for filing of an application for setting aside of ex parte decree is thirty days in cases where the summons is duly served with effect from the date of decree and in cases where the summons is not duly served with effect from the date from the acquisition of the knowledge of the decree. As it has been held earlier that summons were not duly served upon petitioner/Defendant No. 3, therefore, the period of limitation, in this case, could not start from the date of passing of the ex-parte decree but from the date of acquisition of the knowledge by the petitioner, therefore, the application is within the time from the date of knowledge.
21. Defendant No. 3 should be summoned through the issuance of summons in the light of proforma of summons as specifically provided at No. 2 of Appendix B. It is clear from the record that Defendant No. 3 was summoned through the issuance of ordinary notice for appearance, therefore, there was no basis to proceed ex-parte against Defendant No. 3 and passed decree against him.
22. The rule of `audi alteram partem', as a salutary rule, has gained much importance in civilized States of the world. It is equally a J weighty rule in the administration of justice contemplated by injunctions of Islam. This is how it is insisted upon that no one should be deprived of civil liberties and property unless provided with due opportunity of hearing. In presence of consensus of the superior judiciary of the Sub-Continent, it is invariably deemed expedient not to punish a party on account of its minor negligence in defending an action in the Court of law unless such negligence was found accompanied by a willful and deliberate act. As the petitioner/ Defendant No. 3 was not found guilty of gross negligence, the ex-parte decree could not be sustained. Mere negligence of petitioner to appear in the Court did not warrant severe action in the manner of the ex-parte decree. It is not the intention of the law to thwart the adjudication of a lis on mere technicalities of procedure. The law favour the decision of the cases on merits rather than stifling the matters on fetish pleas.
23. Consequently, the findings recorded by the two Courts below to the effect that the petitioner has failed to show a sufficient cause for his non-appearance on the date of hearing on which he proceeded against ex-parte and an ex-parte decree was passed against him are illegal, erroneous, against facts, record and, hence, the same is set aside.
24. Under the above discussion, this revision petition is allowed and the impugned order/judgment dated 08.01.2013 passed by. learned trial Court and judgment/order dated 24.05.2014 passed by learned \appellate Court whereby the application of the petitioner/Defendant No. 3 for setting aside of the ex-parte judgment & decree dated 04.09.2008 was dismissed, are set-aside.
Resultantly, application of the petitioner/Defendant No. 3 for setting aside ex-parte judgment & decree dated 04.09.2008 is allowed and as a consequence judgment & decree dated 04.09.2008 is set aside and the suit of the respondents/plaintiffs shall be deemed to be pending and parties are directed to appear before the Court of learned District Judge, Sheikhpura, on 21.02.2022 who shall entrust the case to the Court of competent jurisdiction. No order as to cost.